Daniel, a qualified Trust and Estate Practitioner and Fellow of the Investment Migration Council, is widely recognised as a leading adviser in international private client mobility. He specialises in helping high and ultra high net worth individuals and families acquire Cayman Islands residency and citizenship, and has advised extensively on relocating businesses and family offices to the jurisdiction. 

The publication brings together expert contributions from private client advisers across 24 jurisdictions, offering an in-depth look at the legal, tax, succession and matrimonial considerations surrounding inbound and outbound relocation of UHNW individuals.

Daniel's chapter offers a detailed guide to the Cayman Islands’ legal and practical framework for global mobility. It covers the jurisdiction’s accessible residency options, tax-neutral environment, and suitability for family office and wealth structuring, alongside its strong international compliance credentials.

Partner Andrew Miller, who heads the firms' Cayman Islands international private client team, said: "Daniel’s contribution to this leading international publication highlights both his expertise and the growing importance of the Cayman Islands for individuals and families considering residency-by-investment. We’re proud to see Bedell Cristin featured on such a respected platform and to have a Partner with such a thriving practice helping to shape the future of international private client mobility."

Global Mobility of Ultra High Net Worth Individuals is available for purchase from Globe Law and Business here.

The Royal Court has had the ability to appoint provisional liquidators since an amendment to the Companies (Jersey) Law 1991 which came into force three years ago, but this is thought to be the first time that the Court has exercised the power. The Court will be providing a fully reasoned judgment in due course setting out the reasons why provisional liquidators were appointed in this case.

Bedell Cristin acted for OWH SE i.L., alongside the teams at Noerr, Macfarlanes and Fountain Court.

The awards, now in their sixth year, celebrate the achievements of young professionals across Jersey’s finance and professional services sector.

Ema’s win recognises her standout contributions to both her clients and the wider community, including mentoring new trainees, supporting industry development, and playing an active role in charitable initiatives.

Ema trained with Bedell Cristin through our trainee solicitor programme and is a valued member of the IPC team, where she advises on a wide range of private client matters. Her commitment, professionalism and impact have made her a trusted adviser and a role model within the firm.

Sevyn Kalsi, partner in the IPC team, said: “I’m thrilled to see Ema get this independent recognition - in a relatively short time in our team she has had a significant impact and continues to deliver high quality work with professionalism and confidence.”

Ema’s success reflects the strength and depth of talent within Bedell Cristin’s IPC team, which continues to be recognised for its leading expertise in private wealth, succession planning and cross-border structuring.

Congratulations to Ema and to all of this year’s Rising Stars winners and nominees.

Claire – who has worked onshore, offshore and on secondment to a Jersey trust company – has joined the team led by partner Nancy Chien as an associate, advising an international client base on the full range of Jersey trusts, foundations, partnerships and companies for wealth structuring purposes.

She has been in private practice since 2019, and is a member of both STEP and the Association of Tax Technicians.

Nancy Chien said: "We are very pleased to be able to add Claire to our team – her blend of experience onshore, offshore and working with trustees neatly complements our work."

The Bedell Cristin contentious and non-contentious International Private Client group – including team members in Jersey, London, Guernsey and the Cayman Islands - was recently shortlisted for the prestigious Chambers High Net Worth Offshore Law Firm of the Year award.

She is one of three new associate arrivals in the firm's Cayman Islands office – Samantha Conolly has joined the firm's International Private Client team in Cayman, while Liam Hicks has transferred to the Cayman Islands from the firm's London office.

Vered has been in private practice since 2020, and has a blend of onshore and offshore experience, including having advised on complex and high value fraud matters, and a significant telecoms dispute, in Australia.

At Bedell Cristin, she will be working with the three partners leading the firm's Cayman Islands' Litigation & Dispute Resolution team on a range of contentious matters including international shareholder disputes, insolvencies and high value real estate disputes.

Bedell Cristin Global Managing Partner Tim Pearce said: "I am very pleased to welcome Vered to our firm – she arrives amidst a very positive run of recruitment and promotions in our Cayman Islands Dispute Resolution and Litigation practice, and we look forward to her making an impact in the team.

"With Samantha and Liam's arrivals – and that of Oliver Byrne a few months ago – we have now had newcomers in each of our Cayman Islands practice groups, as we continue to see big opportunities in the Caribbean."

The list recognises individuals in the private wealth sector in Jersey, Guernsey and the Isle of man with fewer than 15 years' experience, and who are below partner / director level.

Recognition is based on the stature of the employer, feedback from senior industry figures, and the active involvement of individuals in business development and promoting good organisational culture.

Ema's practice focuses on the establishment and operation of a wide range of asset protection and succession planning structures including the establishment and administration of Jersey trusts, foundations and companies in the context of private wealth structuring.

She also advises on Jersey wills, lasting powers of attorney and probate matters.

Ema qualified as an English Solicitor through Bedell Cristin's training scheme in 2023, having previously been part of Bedell Cristin's bursary scheme and worked in the firm's compliance team.

Partner Nancy Chien, who heads Bedell Cristin's International Private Client team, said: "This is such a well-deserved accolade – Ema is doing a fantastic job within the team and it is pleasing for us all to see her hard work and skill recognised externally."

The academy is a highly selective group of onshore and offshore leaders from 41 jurisdictions, all of whom have significant experience in the areas of trusts, estate planning and estate planning. 

Nancy has more than 20 years' experience in private practice, has been admitted to practice law in four jurisdictions - Jersey, BVI, England and Wales and New Zealand – and is recognised by clients and peers for her expertise. She is ranked as a leading lawyer by Legal 500, Chambers High Net Worth, Chambers UK and Chambers Global.

She leads Bedell Cristin's International Private Client team and has deep expertise in advising international families, including ones based in Asia and the Middle East on all aspects of international structuring whether for succession planning, asset protection, family governance or investment related purposes.

Nancy said: "I am delighted to have joined this select group of top international private client lawyers and to be able to share knowledge with global experts on how onshore and offshore legal practice is developing in our field."

The Guernsey Financial Services Commission (GFSC) has issued a public statement on crypto-funds but has set out clear expectations to professionals about its expectations and factors to be considered as part of the application process.

The statement comes weeks after the GFSC announced an update to already successful private investment fund (PIF) rules, removing restrictions limiting the number of investors and cutting requirements for external auditors and risk disclosure statements to make PIFs more scalable, and reduce operational costs.

The crypto-currency statement was issued after Gillian Browning (GFSC Deputy Director General – Investment, Fiduciary and Pension Division) spoke at a fintech panel at Money 20/20 Europe in Amsterdam last week.

In it, the GFSC states:

• Crypto has been evolving, and some crypto currencies such as Bitcoin, appear to be entering a more mature period
• Appropriately-run funds can provide vehicles for a range of investors to invest indirectly in crypto currencies
• When looking at applications to establish crypto funds, the GFSC will consider the track record of those involved, their business model, and risk awareness, including other factors
• Applications will be judged by the commission's usual standards, but those involving retail investors in particular will have to meet additional, specific expectations
• Although Guernsey has had a VASP regime (for virtual asset service providers to run exchanges for customers to buy and sell cryptocurrencies) for some time, they remain cautious about providers of those services

Partner John Scanlan from Bedell Cristin's Guernsey Investment Funds practice said: "This is a welcome statement from the regulator – the first wave of crypto funds was set up some time ago, but there are always international managers looking to establish these vehicles and Guernsey is perfectly placed to support this activity.

"The two recent moves by the regulator in terms of the PIF rules and the crypto statement are a very welcome sign to the industry that the regulator is forward-looking and prepared to adapt with changing circumstances to open up new opportunities for the industry. Guernsey is very much open to business."

The PIF regime – introduced in 2016 – will continue to be accessible only to a limited category of investors and will still require a Guernsey-licensed administrator, but the changes announced by the Island's financial services regulator will make PIFs more scalable, and are likely to reduce operational costs.

As part of the changes, a new QPIF product merges two of the former qualifying routes to PIF status into a single category, which may only admit a broader category of Qualifying Private Investor, but removes the old requirement for the appointment of Guernsey-licensed manager.

The changes also put the Guernsey regime out of line with competitor offshore private fund regimes that require a cap on investor numbers.

Guernsey's financial services regulator, the GFSC, has announced that:

• The cap on investors has been removed, but the requirement that the fund must only be offered privately and to qualifying investors is still in place
• PIFs no longer need to appoint external auditors but must submit financial statements to the GFSC every year (and where an external auditor is appointed, they must operate from Guernsey)
• Risk disclosure statements or offering documents are no longer required, but administrators must obtain a standard declaration form all investors confirming their qualified status and understanding of risk
• All currently registered PIFs will be subject to the revised rules, but there is no need for existing PIFs to update their current investor or service declarations

Partner John Scanlan, an investment funds specialist in Bedell Cristin's Guernsey practice, said: "These changes can only make the PIF regime more attractive, both from the point of view of managers and investors.

"We already see widespread use of PIFs by emerging managers and for club deals and JVs – it is likely that the changes will open up new opportunities for Guernsey professionals in marketing PIFs to larger and more established managers."

The Bedell Cristin team was led by Global Managing Partner Tim Pearce and Head of Corporate Guy Westmacott, supported by senior associate Philip Kendall, working with lead counsel Marriott Harrison.

ClearScore has over 24 million users around the world, and offers a platform for financial data, credit reports and Open Banking data.

Fintech Aro Finance, which counts Argos and Asda among its partners, operates a credit marketplace proposition embedded within affinity partners’ digital infrastructure.

Tim Pearce said: "We are delighted to have worked with the team at Marriott Harrison on this transaction, which cements ClearScore's leading market position. This matter also shows how Jersey as a jurisdiction is a compelling proposition for fintech providers, particularly those with a global client base."

Ema’s nomination recognises her remarkable impact both within the firm and across the local legal and finance community. Known for her meticulous attention to detail, professionalism and approachability, Ema consistently exceeds expectations and is highly valued by colleagues and clients alike.

Her contributions extend beyond her legal practice as she plays a key role in mentoring new trainees, has hosted a knowledge-sharing event for Jersey’s emerging finance professionals, and is an active member of STEP NextGen. Ema also gives back through charitable initiatives, including running the London Half Marathon to raise funds and supporting the annual Shoebox Appeal.

Sevyn Kalsi, partner in our IPC team said, “I’m thrilled to see Ema get this independent recognition - in a relatively short time in our team she has had a significant impact and continues to deliver at the level of a more experienced lawyer."

Ema joined Bedell Cristin through our student bursary scheme and became one of the first to qualify via our trainee programme. Her development and dedication exemplify the talent we strive to nurture and support.

View all nominees and vote at risingstars.je.

The survey of 841 Cayman residents, conducted at the end of 2023, questioned respondents on a wide range of issues around discrimination, DEI policies, pay and flexible working.

Gender Equality Cayman is a non-profit organisation working to advance gender equality in the Cayman Islands through research, education and advocacy.

Adam – who advises on a wide range of offshore matters including real estate structures, financings, TISE listings and corporate work – has rejoined the firm's Jersey Financial Services Law team as a managing associate, having previously practised with Bedell Cristin from 2018 to 2023.

Tom Davies, who heads Bedell Cristin's London office, said: "We are delighted to have Adam with us again – he understands our business and has worked with many of our key clients, and is able to hit the ground running.

"In addition, his recent experience as a partner in an onshore practice gives him real insight into the perspectives of our instructing counsel."

Adam's arrival comes at a time of growth in Bedell Cristin's London office – Adam Knight joined the group as Head of Funds & Indirect Real Estate – London in November, and senior associate Kirsten Brass (International Private Client) and associate David Lobato-Taylor (Financial Services Law) have transferred from the firm's Jersey office in the past six months.

Adam Bartels' most recent role was as a corporate partner at Waterfront Law, and before moving to London he qualified as a Solicitor in Queensland, where he practised with GRT Lawyers.

Amber's experience includes working with the firm's International Private Client team as a paralegal and having worked in one of the largest corporate services providers in the Cayman Islands, in its corporate secretarial team.

Partner Ian Jamieson, who leads Bedell Cristin's Cayman Islands Real Estate practice, said: "We are thrilled to have Amber join our team upon her qualification as a Cayman Islands Attorney – during her time in the firm she has really made an impact, and we look forward to her continuing to develop her career with us.

"It is particularly pleasing to see young attorneys build their careers at Bedell Cristin, and on behalf of all of the Bedell Cristin partners, I would like to congratulate Amber on her success."

The initiative offers member firms volunteering opportunities to get involved in local environmental projects, in collaboration with local experts and charities.

Bedell Cristin will incorporate the Greening Jersey activities into its CSR programme, which sees all team members given dedicated time each year to volunteer for a local charity or community endeavour.

Tim Pearce, Global Managing Partner of Bedell Cristin, said: "We're really pleased to be part of this excellent initiative from Jersey Finance, and I'm looking forward to seeing the projects that our teams get involved with.

"Sustainable financing and ESG funds have been a big part of our work for many years, and that's a hugely rewarding element of what we do – this is a great opportunity for our people to get involved with projects that might be on a smaller scale but which will have an impact close to home."

The long-awaited judgment in Sure and JT v Guernsey Competition and Regulatory Authority (GCRA) will have implications beyond competition law sanctions – in the judgment the Royal Court has reinforced the requirement for Guernsey regulators to conduct all investigations and proceedings with transparency, consistency, and procedural integrity.

The judgment set aside in its entirety the 2021 decision by the GCRA to fine JT and Sure a combined £3.4m for anti-competitive conduct in connection with the roll-out of 5G technology (£2.9m for Sure, and c. £440,000 for JT).

While the appeal, which took place before a four-day hearing in November 2022, was allowed on the ground of procedural irregularity, the judgment makes it clear that the regulator’s findings would also have been set aside on the facts, reinforcing the importance of both procedural fairness and substantive robustness in regulatory decision-making.

Advocate Barclay appeared for JT, leading a team including associate Cassie Wade, supported by external counsel George Peretz KC.

In the judgment, the Royal Court confirmed that:

• a Guernsey authority cannot attempt to introduce new arguments beyond those explicitly set out on the face of the decision under appeal: even if additional justifications may have been available at the time, they cannot be deployed retrospectively.
• a regulator must not base its final decision on grounds different from those which were notified during the course of the investigation.
• where allegations of anti-competitive conduct are made, the findings must be expressed with precision and supported by a rigorous analysis of the evidence

Separate appeals by JT and Sure over the penalties issued will now not go ahead, given the setting aside by the Court of the GCRA's findings.

Advocate Jon Barclay – a partner in Bedell Cristin's Guernsey Litigation and Dispute Resolution practice group since 2015 – said: "This judgment has wide implications across all regulated sectors, strengthening the expectation that regulators adhere to high standards of reasoning and decision-making.

"This case provides a timely reminder of the importance of procedural safeguards in regulatory enforcement.

"It also confirms that the Royal Court will readily engage both with procedural challenges and scrutiny of the underlying facts, reinforcing its intended function as a crucial check on regulatory over-reach."

Naomi Ryan has qualified as an associate through the firm’s Solicitor Training Programme and joins Bedell Cristin’s Jersey Financial Services Law team. She originally joined Bedell Cristin as a paralegal in the Jersey International Private Client practice group, before qualifying as a Solicitor of England & Wales after placements across the firm’s legal teams.

Harry King has also qualified as an associate and will join the firm’s Guernsey Litigation team shortly. He began his career as a paralegal in the Guernsey Financial Services Law team before beginning his training contract to qualify as a Solicitor of England & Wales in 2023.

Additionally, Leanne Duffy has been promoted to HR Manager, recognising her contributions to the firm’s HR function and wellbeing strategy. Leanne has been with Bedell Cristin for over four years, having previously worked within Jersey's finance and legal services industry.

Bedell Cristin global managing partner Tim Pearce said that supporting career development remains a priority for the firm.

"On behalf of the partners, congratulations to Harry and Naomi on qualifying as associates and to Leanne on her well-deserved promotion,” said Tim.

“It is particularly rewarding to see our training programme continue to develop talented lawyers within the business, with more people progressing through to associate roles. Investing in our people and providing clear career pathways is a fundamental part of our success."

Founded in 1995, Advisa Wealth is a leading Jersey-based financial planning business with over 1,800 clients. Advisa's trusted brand and financial planning expertise is expected to complement Titan Wealth's existing services.

The Bedell Cristin team has been led by Jersey Head of Corporate Guy Westmacott alongside Regulatory Partner Richard Le Liard, with support from Senior Associate Natasha Bairstow, Associate Devon Jenkins and Trainee Solicitor Juliette Walton. Bedell Cristin acted as lead legal counsel to the sellers while Titan Wealth was represented by Gateley Legal.

Guy Westmacott said: "Bedell Cristin has enjoyed a strong relationship with Advisa Wealth for a number of years and we've been thrilled to advise on this deal, which marks an exciting step in Advisa's journey and again highlights Bedell Cristin's credentials as a leading Jersey legal advisor on M&A deals."

The Legal 500 is widely regarded as a benchmark for excellence in the legal profession, with its rankings based on independent research and client feedback. Kristian’s recognition as a Leading Partner reflects his expertise in corporate law, financial regulation and his specialised work in fintech and digital assets. 

With over a decade of experience practising as a BVI lawyer in Asia, Kristian advises on mergers and acquisitions, joint ventures, investment funds and regulatory matters. His understanding of legal and regulatory frameworks, combined with a client-focused approach, has made him a trusted advisor to a wide range of clients including listed companies, fund managers and trust companies. Kristian has been recognised as a Leading Individual in the Guide for the last two years.

Tim Pearce, Global Managing Partner at Bedell Cristin, said: "Kristian’s recognition as a Leading Partner in the Legal 500 Asia Pacific Guide is a fantastic achievement.

"It highlights the quality of his work and his commitment to delivering excellent outcomes for his clients. We’re delighted to see his efforts acknowledged in this way."

A team led by Guy Westmacott alongside Alasdair Hunter, with support from senior associate Emily Nieuwburg, advised on the Jersey law aspects of the matter, working with Andium's lead counsel, O’Melveny & Myers LLP.

The funding secured by the issuance, which is Andium's first in the private placement market, will support Andium's ongoing development programme which is focused on delivering much needed new family homes for Jersey residents.

Guy Westmacott, Head of Corporate for Bedell Cristin Jersey, commented: "We were excited to be involved in this hugely important transaction, and it has been a pleasure to work alongside Andium and their other advisers to achieve a great result for Jersey."

Fraser and Michael joined the firm in 2021 and 2020 respectively, and joined the partnership in the firm's annual promotions earlier this year. Tom has re-joined the firm as a partner after spending eight years at Bedell Cristin between 2012 and 2020.

Bedell Cristin Global Managing Partner Tim Pearce said that Fraser, Michael and Tom have had a big impact on their practice areas.

He said: "On behalf of all of the partners, I am delighted to welcome Fraser, Michael and Tom to the Bedell Cristin partnership.

"They are outstanding lawyers with strong reputations in their markets.

"All three are widely respected, and have been contributors to our success over the past few years – their progress to the partnership is thoroughly-deserved."

The news means that the partnership in the Cayman Islands is the largest that it has been since Bedell Cristin entered the market through a merger with Solomon Harris in 2018.

Bedell's annual promotions also saw Jonathan Stroud promoted to managing associate in the firm's Litigation and Dispute Resolution team. Jonathan has been in private practice since 2015, and has been working in the Cayman Islands since 2022, with a strong focus on the Cayman Islands insolvency and restructuring market.

About the new partners:

• Fraser Allister was named as a Leading Associate in the last edition of Legal 500 rankings – he advises clients on Cayman Islands and BVI law, and works with onshore firms, trust companies, family offices, and HNW and UHNW individuals and families on private wealth structures.
• Michael Sharvin advises clients on a range of transactional, financing and advisory matters relating to commercial, leisure and residential property in the Cayman Islands, and was ranked as a Leading Associate in the last edition of the Legal 500 rankings. 
• Tom Wright advises clients in Cayman, London, the US and Latin America on commercial litigation and contentious restructuring and insolvency matters – he has been practising in the Cayman Islands since 2012, and practised in London with Reynolds Porter Chamberlain before moving offshore.

Oliver joins the team headed by partner Ian Jamieson, which focuses on high value commercial and residential real estate transactions, financings and development in the Cayman Islands.

The team is part of Bedell Cristin's locally-focused real estate practice, which includes relocations partner Daniel Altneu, and disputes partner Richard Parry.

Oliver, who joins the team as an Associate, has been in private practice in the UK since 2019, and previously worked for leading property law teams in the north of England, acting for major commercial developers and local authorities on investments, financings, developments and asset management.

Aside from transactional work and advisory matters, he also undertakes client education and training sessions on updates to legislation and shifts in market trends.

Ian said: "We are delighted to welcome Oliver on board – his background in onshore law in one of the leading real estate teams in the north of England is excellent preparation for the work that we do here, and we look forward to him having a real impact on the team."

The eprivateclient rankings highlight the leading private wealth teams in offshore law, and spans the global private client sector.

Bedell Cristin's private client team advises on all aspects of private client matters spanning across Jersey, the Cayman Islands, BVI and Guernsey, involving contentious and non-contentious matters. They are one of the largest private client teams in both Jersey and the Cayman Islands. 

Earlier this year, Fraser Allister became a partner in the Cayman Islands office, and Isabelle Russell in the Jersey office was promoted to senior associate.

Nancy Chien (the head of the practice in Jersey) said: "We are very pleased to see this sustained recognition by one of the leading sources in the industry – we are very proud of our talented team and the commitment that they continue to show to our standards of technical expertise and client service."

Andrew Miller (the head of the practice in Cayman) added: "Our focus on building lasting and direct relationships with clients across the world. We continue to act on highly complex international structures and it is pleasing to see the quality of our work recognised in this way."

The leading legal directory has ranked eight separate practice groups, following independent research and client feedback.

Chambers' latest edition – covering the firm's Jersey, Guernsey and London offices – ranks 16 partners from Bands 1 to 3, and two of the firm's managing associates.

The Chambers & Partners rankings follow the Legal 500 rankings published earlier this month – Legal  500 ranked the firm's Jersey Dispute Resolution, Private Client, Capital Markets, Regulatory & White Collar Crime and Commercial Property teams in the highest categories, and named Nancy Chien, Alasdair Davidson, Edward Drummond, Robert Gardner, Alasdair Hunter, Richard Le Liard, Jeff O'Boyle, Kate Ovenden and Guy Westmacott as Leading Partners.

Bedell Cristin Global Managing Partner Tim Pearce said: "It is good to see so many of our people recognised across diverse areas of legal practice in Jersey and Guernsey – we are grateful, as always, to those who contributed to the research process this year, and we feel that the feedback quotes cited by Chambers clearly demonstrate how we are seen in the market.

"These results reflect not just on the quality of our partners but on the client service and technical expertise of our legal teams, and their success is down to the combination of hard work, technical skill and excellent client care that we are all about."

Testimonials and quotes cited include:

• "The team provides very clear and concise advice. They look for commercial solutions and work collaboratively to implement them. They feel like an extension of our own team on a transaction, which is exactly what you want from local counsel."
• "Bedell Cristin have dedicated teams which specialise in the areas that impact us. They will always have someone with the depth of knowledge and experience that we need when dealing with complex work."
• "The firm is experienced in dealing with complex and sophisticated matters."
• "The Bedell Cristin team is strong at all levels and always helpful."

Devon, who has practised in Guernsey with another offshore firm and with one of the largest law firms in South Africa before moving offshore, joins the growing team led by Head of Employment Marianne Russell covering both Guernsey and Jersey law.

He advises clients on matters including discrimination and unfair dismissal claims, disciplinary and grievance procedures, internal investigations, employee handbook and policy reviews, and issues related to the islands' business and licensing regimes.

Devon also has experience of working within a regulated corporate services provider in Guernsey.

Bedell Cristin global managing partner Tim Pearce said: "We're very pleased to welcome Devon to the team – his background in Guernsey and in onshore practice, as well as working within a corporate services provider, enables him to add valuable experience and perspective to clients in employment law matters."

Devon qualified as a South African Attorney in 2016 and has worked in private practice, including fulfilling an extended secondment to BMW Group in South Africa, and more recently operated as assistant vice president in the corporate secretarial team of a corporate services provider in Guernsey.

What is Part XIX of the BVI Insolvency Act?

Part XIX is the statutory regime for seeking "assistance" for foreign insolvency proceedings in the BVI.

Under Part XIX, "foreign representatives" (in practice, insolvency officeholders) from a list of designated countries may apply to the BVI courts for a range of remedies (which are set out in Part XIX). The most common remedy is to enable the foreign representative to gain control of assets and take other steps to secure property and information within the BVI in support of the foreign insolvency proceedings.

Part XIX gives foreign representatives from "relevant foreign countries" an express right to apply to the BVI courts for assistance through BVI court orders.

Which countries are now "relevant foreign countries" under Part XIX?

Before the expansion of the list, "relevant foreign countries" referred to only nine jurisdictions: Australia, Canada, Finland, Hong Kong, Japan, Jersey, New Zealand, United Kingdom, and United States of America.

The BVI Financial Services Commission has now added over 20 additional countries to the list. They are:

• Bahamas;
• Barbados;
• Belize;
• Bermuda;
• Cayman Islands;
• Guernsey;
• Guyana;
• Ireland;
• Isle of Man;
• Jamaica;
• Member States and Territories within the Organisation of Eastern Caribbean States (the OECS, comprising Anguilla, Antigua and Barbuda, Dominica, Grenada, Guadeloupe, Martinique, Montserrat, Saint Kitts and Nevis, Saint Lucia, and Saint Vincent and the Grenadines);
• Nigeria;
• Singapore;
• Trinidad and Tobago; and
• Turks and Caicos Islands.

What does this significant development mean?

In Net International Property Limited v Erez (22 February 2021), the BVI Court of Appeal held that the intention of Part XIX is to "provide a complete code for foreign representatives to apply to the BVI courts for assistance in cross-border insolvency matters such that foreign representatives from non-scheduled countries are unable to obtain assistance". 

The expansion of the list now allows even more foreign representatives to access the Part XIX streamlined assistance from the BVI courts.  This creditor friendly initiative provides benefit to a greater number of multi-jurisdictional proceedings, where there will be easier administration between the BVI courts, foreign representatives and the respective proceedings.  It demonstrates the jurisdiction's commitment to being a "place to do business" and brings the BVI into line with its offshore rivals.

What rights exists for countries not included in the list of "relevant foreign countries" under Part XIX?

For foreign representatives from countries that are not scheduled in the list of "relevant foreign countries", the common law right of recognition survives in the BVI.  That common law right may provide recognition but does not, though, carry the right of assistance from the BVI courts. 

Therefore, without the Part XIX rights, there is often only limited benefit in obtaining (common law) recognition from the BVI courts.

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

The leading legal directory has ranked the firm's Jersey Dispute Resolution, Private Client, Capital Markets, Regulatory & White Collar Crime and Commercial Property teams in the highest categories, following independent research and client feedback.

The latest edition – covering the firm's Guernsey, Jersey and London offices – has also promoted Jersey Advocates Edward Drummond and Jeff O'Boyle to Leading Partner for Jersey Dispute Resolution and Commercial Property respectively, and have promoted Advocate John Scanlan to Next Generation Partner for Guernsey Investment Funds, and Group Partner Elena Gogh to Next Generation Partner for Guernsey Private Client.

In all, the guide names nine Bedell Cristin partners across the three offices as Leading Partner and five as Next Generation Partner, with eight further lawyers recognised as Leading Associates, and three in the Hall of Fame.

Bedell Cristin Global Managing Partner Tim Pearce said: "Winning independent recognition of this kind, both collectively and individually, shows how we are seen in the market, and we are grateful to those who contributed to the research process this year.

"I am particularly pleased to see so many of our lawyers from partner through to associate recognised for the quality of their work across such a broad range of legal disciplines – their success is down to the combination of hard work, technical skill and excellent client care that Bedell Cristin is all about."

Tim and fellow partners Martin Paul and Edward Bennett were named in the Legal 500 Hall of Fame in the listings issued today.

The Leading Partners are: Nancy Chien, Alasdair Davidson, Edward Drummond, Robert Gardner, Alasdair Hunter, Richard Le Liard, Jeff O'Boyle, Kate Ovenden and Guy Westmacott.

The Next Generation Partners are: Bobby Christie, Tom Davies, Elena Gogh, Sevyn Kalsi and John Scanlan.

The Leading Associates are:  Natasha Bairstow, Antony Clerehugh, Malcolm Ellis, Tendai Gakanje, Louise Hassell, Louise Ridgway, Hannah Robinson and Sonia Shah.

Fraser's promotion means that the firm's Cayman International Private Client team is now led by three partners, with more announcements about the firm's growing Cayman Islands team to follow.

Elsewhere in the business, Advocate Hannah Robinson has been promoted to managing associate in the tier-one ranked Jersey Property Law team; Advocate Malcolm Ellis and Caroline Oliver have been promoted to Counsel in the Jersey Financial Services Law and BVI Litigation teams respectively; and Philip Kendall (Jersey Financial Services Law), James Peart (Jersey Financial Services Law) and Isabelle Russell (Jersey International Private Client) have been promoted to senior associate.

Chassidy Leonard has also been confirmed as an associate in the firm's BVI office, having completed her qualifications. In the Business Support teams, Sven Ford has been promoted to Senior Service Desk Analyst and Sebastian Markowski has been promoted to Senior ICT Application and Database Analyst, and Nathalie Xia has progressed to a new role as Practice Manager in Singapore Anna Snowden has progressed to a new role as Marketing and Communication Executive.

Bedell Cristin global managing partner Tim Pearce said that he was proud to see so many people progressing to leadership roles within the business.

"On behalf of the partners, congratulations to all of those who are progressing to new, senior roles – it is particularly pleasing to see that we have promotions to announce across every one of our practice groups and the majority of our international offices," said Tim.

"We have seen some very impressive performance over the past 12 months, and there have been some outstanding individual contributions to that collective success – the promotions announced today recognise those contributions, and the continuing professional development within our business.

"We look forward to being able to announce further exciting news shortly."

The team of Tom Davies and Guy Westmacott, representing our London and Jersey offices respectively, completed the 255-mile, three-day challenge in mid-June 2024, along with colleagues and friends from Blackstone, Revantage Europe and St. Mowden Logistics.

The challenge set a fundraising goal of £175,000 to support the work of Habitat for Humanity Great Britain – the global charity operates in 70 countries and has helped to build and improve homes for more than 13 million people since 1976.

Partners Kate Ovenden and John Scanlan and associate Seth Botes will be attending from our Guernsey Financial Services Law team.

Guernsey partner Alasdair Davidson along with Jersey partners Nancy Chien, Robert Christie and Robert Gardner have all been recognised in the Tier 1 Elite category, with managing associates Fraser Allister (Cayman Islands) and Sonia Shah (Jersey) gaining Tier 2 Excellence recognition.

With members of our teams in the Cayman Islands, Guernsey and Jersey recognised for the quality of their work and client service, the directory demonstrates the scale and reputation of our international offering to the global private client sector.

The Private Client Global Elite Directory was created with the awareness that referrals and recommendations are absolutely key to the private client sector. To know that someone is an excellent technical practitioner is not enough, it is integral for the maintenance of client relationships that the advisors clients are referred to are good personality fits and masters of communication. As such, rather than a listing of private client advisors as chosen by a third party, these are the top 250 excellent individuals as chosen by their own peers within the private wealth industry.

The full directory listing can be found here.

As signposted at the end of last year, the Official Journal no longer lists the jurisdiction amongst the countries deemed to pose a high risk for AML purposes.

A jurisdiction's inclusion on the list would typically require EU-based financial institutions dealing with entities from the jurisdiction to apply enhanced due diligence measures.

The removal of the Cayman Islands from the EU AML list will take effect from 7 February - 20 days after the publication of today's Official Journal.

The news follows the removal of the jurisdiction from the FATF's grey list last October, and the removal from the UK's list of high-risk third countries for AML / CFT / CPF purposes in December.

Today's announcement has been welcomed by Deputy Premier and Minister for Financial Services André Ebanks in a public statement.

He said: “The Cayman Islands Government fully understands the significance of this achievement, and what it means for our international reputation.

“My Government colleagues and I are profoundly thankful for the dedication of the many civil servants, regulators and industry members who walked the talk, earning our regime this recognition as a sound place for business. And we reaffirm our commitment with each milestone we achieve.”

The schemes – which have already seen young Islanders qualify as lawyers and join the firm as associates – are a key part of Bedell Cristin's commitment to playing a positive part in the communities in which it operates.

The two schemes are:

• A bursary offering aimed at university students in Guernsey and Jersey – the firm offers payments staggered through the academic year, up to eight-weeks' paid legal work experience, Amazon vouchers to all new entrants and support for students throughout their studies from qualified lawyers.
• A trainee scheme aimed at graduates from Guernsey and Jersey – the firm offers a two-year fully-paid training programme to qualify as a Solicitor of England & Wales (via the Solicitors Qualifying Examination (SQE) route), with rotating placements across legal disciplines and support areas to get a full understanding of how a law firm operates.

The schemes run from September, and applications for both schemes are open until 28 February, with full details on Bedell Cristin's website.

There are currently 15 people on Bedell Cristin's various student schemes across Guernsey, Jersey and the Cayman Islands, and 5 lawyers working and progressing through the firm who have graduated through the schemes.

Vicky Ramos, an associate in Bedell Cristin's litigation team who qualified as a Solicitor through the scheme in Jersey, said: "The support from the Bedell Cristin bursary scheme and trainee programme empowered me to seamlessly transition from aspiring legal professional to qualified solicitor."

Steven Zandvliet, who is currently on the firm's trainee scheme in Guernsey, said: "The opportunities provided to me by Bedell Cristin since I joined as a paralegal has made it the ideal place for me to qualify."

Bedell Cristin's Global Managing Partner, Tim Pearce, said: “It is a real pleasure to meet and spend time with the Bursary students and trainees at Bedell Cristin – every year we see more talented young people take the first steps of their legal career with the firm, and supporting them along the way and having them play their part in our future as lawyers is important to us.

"I would encourage anyone considering a legal career – or a career in the wider support services within the legal industry – to get in touch with us and see how our schemes can help. Students benefit from working with some of the most experienced and respected lawyers in our fields, and we benefit from building lasting relationships with the future leaders of the legal industry."

Find out more about the schemes and apply through our student scheme page here, or contact Andy Owens, HR Manager.

Hannah – a senior associate in Bedell's top-tier ranked property law team – has ten years' experience of onshore and offshore practice as a real estate lawyer, and is recognised by independent legal directory Chambers & Partners as an "Associate to Watch", and by Legal 500 as a "Rising Star".

Hannah is a member of the team led by partner Jeff O'Boyle that focuses on property law, high-value residency, development, property finance and landlord & tenant matters.

After being sworn in on Thursday 7 December she has become the third Jersey Advocate on the team, alongside Jeff and counsel Jane Needham.

The team are advisers to major developers in the Island, to lenders, and to public bodies.

Jeff said: "We are delighted for Hannah – property law in Jersey is a specialist and technical field of practice and qualification as a Jersey Advocate is an important step for any Jersey property lawyer.

"Hannah has made a significant contribution to the growth of our top-tier practice in the five years that she has been with us, and to be recognised by both Chambers & Partners and Legal 500 demonstrates how highly she is regarded by clients."

Tim Pearce, the Global Managing Partner of Bedell Cristin, added: "On behalf of all of the partners at Bedell Cristin, congratulations to Hannah on qualifying as a Jersey Advocate – the process is a tough one, and it is all the more impressive to have achieved what she has during a period that has been impacted by the pandemic lockdowns."

How is stamp duty applied to property purchases?

Generally, you can expect to pay stamp duty at a rate of 7.5% on the purchase of real estate, whether it be undeveloped ‘raw’ land, or developed land with buildings on it. Concessional rates and waivers are available in certain circumstances (for example, for Caymanian first-time property buyers).

Historically, until the law changed at the end of December 2019, some developers sought to minimise stamp duty payable by their clients by structuring their contracts in two interdependent parts: a contract for the sale of raw land on which the building will be constructed; and a development or construction contract to be carried out by the developer or a related company.

Under the old law, structuring the deal in this way had resulted in stamp duty being assessed against the value of the raw land only, without taking into account the value of the building that the developer has agreed to construct on the land, provided that the purchase agreement is presented to the Lands and Survey Department for assessment before any work has been carried out on the land.

Up until recently, the Cayman Islands Lands and Survey Department had indicated that stamp duty paid on a purchase agreement cannot be applied to a future assignment of that purchase agreement. This meant that Lands and Survey would calculate stamp duty based on 7.5% of the market value (or 3% if it was a linked transaction below CI$300,000) of the property regardless of whether stamp duty had been paid on the original purchase agreement.

What does the updated guidance say?

In a move that will be welcomed by developers and purchasers/assignees alike the Cayman Islands Lands and Survey department has issued updated guidance which states:

• Assignments of qualifying purchase agreements by 30 June 2021 with no premium will be charged stamp duty on the assignment in the sum of CI$200 and provided stamp duty has been paid on the qualifying purchase agreement then no further stamp duty is payable on closing.
• Assignments of qualifying purchase agreements by 30 June 2021 with a premium will be charged stamp duty on the assignment at 7.5% of the premium and provided stamp duty has been paid on the qualifying purchase agreement then no further stamp duty is payable on closing.
• Assignments of qualifying purchase agreements after 30 June 2021 with no premium will be charged stamp duty on the assignment in the sum of CI$200 and stamp duty will be payable on closing at 7.5% of total consideration or market value of the property (whichever is the higher).
• Assignments of qualifying purchase agreements after 30 June 2021 with a premium will be charged stamp duty on the assignment in the sum of CI$200 and stamp duty will be payable on closing at 7.5% of total consideration or market value of the property (whichever is the higher).

Whilst the update is silent on this point we suspect that if you take an assignment of a purchase agreement after 30 June 2021 and it is a linked transaction with a total consideration or market value below CI$300,000.00 then stamp duty will still be payable at 3%.

What does this mean in practice?

This means where a party has paid stamp duty on a purchase agreement then subject to certain requirements as set out above the purchase agreement can be assigned to a third party and on closing no further stamp duty will be payable on the transfer of land. However, please note the assignment must be completed on or before 30 June 2021 and where a premium is charged, stamp duty will be charged at 7.5% of that premium.

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

David joined Bedell Cristin in 2003 after having practised as an English barrister for nearly 10 years. He became a Partner in 2005 and held the role of Global Managing Partner from 2016 to 2019, during which time he steered the firm to becoming an independent standalone practice and oversaw our significant merger in the Cayman Islands. He has continued his role as Jersey Managing Partner since 2019.

David will be sworn into his new position in February 2023. He succeeds Advocate Matthew Thompson, who will become a Commissioner of the Royal Court.

Tim Pearce, Global Managing Partner, commented:

"I'd like to congratulate David on his appointment to this esteemed role. Being appointed as Master of the Royal Court showcases not only his legal expertise, but also his passion for the island, and it is a testament to the calibre of our firm and our litigators that one of our own is being appointed to judicial office.

“There is no doubting David’s significant contribution to Bedell Cristin over the last twenty years, and we thank him for his dedication to the firm. We know that David will continue to make a difference to Jersey’s legal community in his new role.”

On 4 July 2022, the Jersey Employment Forum (the "Forum") released a Consultation Survey on the 'Operation of Zero Hour Contracts in Jersey'.  The purpose of the consultation is to enable the Forum to make recommendations to the Social Security Minister on any changes to the Employment (Jersey) Law, 2003 (the "Law") together with any other measures that may be necessary to enhance the protections available to employees, and to clarify the rights and responsibilities of employees and employers under the Law. 

Currently, it is believed that about 10% of jobs in Jersey are filled by employees on zero hour contracts. Whilst 85% of those individuals express high levels of satisfaction with their arrangements and in particular the flexibility advantage of such working arrangements, it has been identified that there are disadvantages of zero hour working arrangements, and this consultation is aimed at both identifying those disadvantages and proposing solutions to mitigate them.

The Forum have produced a background paper that provides a useful synopsis not only of the issues surrounding zero hour contracts but also the proposals under consideration.

The consultation is open until 31 August 2022 and we would encourage all employers who use zero or variable hour contracts to complete the survey.  Responses can be submitted online or by completing this form and sending it by email or post the Forum.

From our perspective as employment lawyers, we consider the key will be in the definitions adopted (or not) about what constitutes a "zero hour contract" and whether a distinction should be made between "workers" and "employees" in the Law, similar to the UK and other jurisdictions. This will feed directly into the statutory rights accorded to zero hour employees in respect of (in particular) unfair dismissal, paid parental leave and redundancy and how, for example, those rights are accrued (if at all) and attributed.  We consider this to be an opportunity for clarity to be provided both in the Law and in guidance in relation to how, for example, continuity of service is calculated for zero hour, variable hour and seasonal employees and how, for example, the rate of pay for paid parental leave, is to be calculated.

If you want to discuss any part of the consultation or your own arrangements in relation to zero and variable hour contracts, please contact a member of the employment team and we would be happy to assist.

Employment and Discrimination Tribunal – annual report

The Employment and Discrimination Tribunal (the "EDT") is an independent judicial body established to hear and determine claims arising from the three main sets of employment legislation in Jersey – the Employment (Jersey) Law 2003, the Employment Relations (Jersey) Law, 2007 and the Discrimination (Jersey) Law, 2013.

Each year, the EDT produces an annual report summarising the claims bought and determined by the EDT in the preceding year.  We have summarised below some of the more interesting statistics from the recently released Annual Report for 2021:

1. Number of claims: There were 144 claims made in 2021 (which was a decrease of about 20% from 2020). Interestingly, 29% of those claims lodged were withdrawn (for reasons unknown) and 25% were settled by JACS during the mediation process. Only 35 claims progressed through to a final hearing in 2021, leaving 20 claims undetermined by the end of the year.
2. Common claims: The most common claims made concerned unfair dismissal and discrimination followed closely by unpaid wages, unpaid annual holidays and notice pay, as well as failure to provide written terms and/or payslips. The majority of claims made involved multiple issues and few claims were based on only one issue (i.e. discrimination).
3. Success rates: Interestingly, when it came to outcomes of the determined hearings, claimants were more likely to be successful in their claims of unpaid wages, not receiving payslips and not being provided with a written contract (and generally were unrepresented), whilst employer Respondents were successful in the overwhelming majority of cases in respect of claims concerning unfair dismissal, notice pay and discrimination (and generally were represented).
4. Awards: The EDT awards "damages" for successful breach of contract claims, wrong dismissal, unpaid wages etc. and "compensation" for successful statutory claims such as unfair dismissal, discrimination and failure to provide pay slips and/or terms of employment etc. The overall value of the awards ordered by the EDT in 2021 was relatively modest with the 35 determined hearings in 2021 seeing £29,020 being awarded in damages and £43,948 being awarded in compensation.
5. Unfair dismissal: There were four successful unfair dismissal cases in 2021 – however in three of those cases, the Tribunal reduced the compensation award by 30% to 50%.
6. Discrimination: Of the 40 discrimination claims lodged in 2021, over 55% concerned allegations of disability discrimination. Of the claims that progressed to a fully contested hearing, 0% (i.e. none) of those discrimination claims were successful.
7. Legal Representation: Approximately 35% of Respondents engaged a legal representative at the commencement of the process, with that number increasing to almost 50% of Respondents being legally represented for the contested hearing.
8. Time frames: The vast majority of the determined cases saw the claim being heard within 6 months of the claim being lodged and the judgment after a contested hearing being received within 2 weeks of the hearing completing.

One of the trends that we have identified both from our experience and which is also reflected in the annual report, is that having legal representation from an early stage greatly improves a Respondent employer's chances of successfully defending a claim – whether that be by way of effectively negotiating a settlement or causing a withdrawal of proceedings or by supporting a Respondent employer through to a fully contested hearing.

Should you need any advice in respect of a threatened or actual EDT claim from a current or former employee, please contact a member of the employment team and we would be happy to assist.

Located in the sunny Algarve region of Portugal, Vilamoura regularly hosts this event, attracting fraud and insolvency practitioners from across the globe. 

The event runs from 18-20 May 2022 and offers delegates a mixture of sessions, interactive workshops and plenty of opportunities to network and socialise in the 5-star Anantara Hotel. 

Find out more about the event here. 

Background and Petitioner's objection

The company, Global Cord Blood Corporation ("GCBC"), had been placed into provisional liquidation in September 2022 by Blue Ocean Structure Investment Limited (the "Petitioner"), which had sought to remove GCBC's management team. GCBC's former directors requested access to the court file in October 2023, on the basis of rights under the court rules they asserted they had, but the Petitioner objected to this exercise of the right to inspect because it maintained that GCBC was not yet in official liquidation.

The Petitioner argued that the right to inspect only arose after the "commencement of the liquidation" by winding-up order, which was distinct from a liquidation proceeding like the present pre-winding up order phase. In these circumstances, the Cayman court Registrar, to whom the application for access had been made, referred the issue to the judge for determination on the papers (i.e., in writing).

Procedural rights to inspect exist at all stages

Under the Cayman Companies Winding Up Rules (2023 Revision), O.26, r.4, there are several parties who have the right to inspect and take copies of the court file of a company in liquidation, including "any person who was a director or professional service provider of the company immediately before the commencement of the liquidation." The Companies Act (2023 Revision) of the Cayman Islands indicates that the winding-up of a company is deemed to commence at the time the petitioner presents a petition for winding up to the court (i.e., court-ordered liquidation), but only if and when such an order has been made. The Petitioner relied on these subtle differences in language to support its position, but the court was not convinced.

Kawaley J held that the former directors were entitled to inspect the court file for several reasons. First, for the exercise of rights under the rules, there is no distinction to be made between a liquidation and a liquidation proceeding, as the governing opening words of the rule use the latter term. The natural and ordinary meaning of “liquidation proceeding” suggests a proceeding at any stage relating to a company's liquidation. This was supported with reference to other rules, which do not permit the opening of more than one court file for a liquidation proceeding, and the costs regime that applies to all phases of a liquidation proceeding, including the pre-winding-up and petition phase.

Moreover, the collective character of winding-up proceedings suggests that the purpose of conferring positive inspection rights on parties interested in the proceedings is to facilitate their exercise of fair hearing rights. Kawaley J held that "It would be inconsistent with such fundamental rights to limit inspection rights to the winding-up phase of a liquidation proceeding alone, and to exclude their operation when the Court is at the stage of deciding how the petition should be adjudicated." Liquidation matters can sometimes take months or even years to reach winding-up, as is the case with GCBC, which makes this decision a sensible confirmation of interim procedural rights.

Directors and officers may still be subject to regulatory, fiduciary and other duties after a company commences liquidation proceedings, so it is reasonable to assume they may need to access, inspect and take copies of items in the liquidation court file.

Conclusion

The decision closes with the caveat that inspection rights are not absolute and do not apply to sealed documents. The court can still exercise its inherent jurisdiction over procedural matters to ensure fairness where appropriate. Cayman Islands liquidation proceedings are subject to a particular set of rules that ensure matters are conducted in a just and equitable manner, including with reference to the overriding principles of open justice. The team at Bedell Cristin is well equipped to help with any "fight for your right" to conduct insolvency proceedings in the most efficient and expedient way possible.

Special congratulations go to Joss Morris, a partner in the Cayman Islands office who advises on investment funds, corporate and finance matters. Joss has been newly listed as a ranked lawyer in the Cayman Islands Investment Funds and Corporate & Finance categories.

Tim Pearce, Global Managing Partner, who has retained his position in 'Eminent Practitioners' commented:

"Our strong showing in the Chambers Global directory is a reflection of the experience and strength in depth that we offer our clients. To have 20 lawyers from our Cayman Islands, Guernsey and Jersey teams ranked in 9 practice areas firmly positions us as a leading cross-jurisdictional offshore law firm. I'm delighted to see Elena Gogh, our most recent partner hire, continue to be ranked in the Guernsey Trusts category and congratulate Joss for his Chambers' rankings which are thoroughly deserved."

Bedell Cristin ranked lawyers:

• Jon Barclay – Guernsey
• Edward Bennett – Jersey
• David Cadin – Jersey
• Nancy Chien – Jersey
• Robert Christie – Jersey
• Alasdair Davidson – Guernsey
• Edward Drummond – Jersey
• Mark Dunlop – Jersey
• Rob Gardner – Jersey
• Elena Gogh – Guernsey
• Laura Hatfield – Cayman Islands
• Alasdair Hunter – Jersey
• Ian Jamieson – Cayman Islands
• Kai McGriele – Cayman Islands
• Joss Morris – Cayman Islands
• Kate Ovenden – Guernsey
• Martin Paul – Jersey
• Tim Pearce – Jersey
• Sonia Shah – Jersey
• Richard Sharp – Guernsey

Kim Manley has been recruited as a Senior Associate in London. Kim, who has more than 10 years’ experience, began her career in Zimbabwe where she specialised in private client matters before moving to Guernsey where she worked most recently for Babbé LLP. She has qualified as a solicitor in England and Wales.

Isabelle Russell has been appointed as an Associate in Jersey. Isabelle worked previously in New Zealand where she qualified as a solicitor and worked for seven years with McVeagh Fleming in Auckland.

Nancy Chien, Partner and Head of Bedell Cristin IPC team, commented:

The recruitment of Kim and Isabelle is part of the ongoing expansion of our IPC service offering, building further on the substantial team of lawyers with wide ranging international experience, based in our various key locations, who advise and provide solutions to our family office and high net worth clients worldwide.’

Since 1998, it has been an offence in Jersey, punishable by way of fine or imprisonment (for a term not exceeding 12 months) (or both) to intermeddle in the estate of a deceased person; that is to take possession of, or in any way administer, any part of the movable estate sited in Jersey with a value exceeding £10,000 of a deceased non-Jersey domiciled person without first obtaining a grant of representation (either a grant of probate or letters of administration) from the Royal Court of Jersey (a "Grant").  Jersey banks have been subject to hefty fines where they have been found to have intermeddled: on which see our earlier news piece: Intermeddling - Second bank fined for contravention of Probate Law.

The de minimus of £10,000, which was prescribed by the Probate (Jersey) Law 1998 (the "Probate Law"), now 25 years old, is finally being updated to £30,000.  This means that Jersey banks and other financial organisations may release deceased estate with a value up to £30,000 to an applicant that appears to be entitled to receive it either under the deceased's will or the laws of the deceased's domicile.  The applicant must provide such documents, information or security as the bank may require proving their entitlement.  Additional conditions in the update to the Probate Law are that there must be no caveat in force on the estate and the applicant must declare that they acknowledge that the bank is not liable for that estate once it has released it.

Providing that the deceased's estate is released in good faith and in accordance with the updated Probate Law, the bank is protected from any action by the estate of the deceased or any beneficiary of it, but the bank must on demand provide details and an explanation of their action in releasing the estate.

Consideration will need to be given to the de minimus that Jersey banks and other financial organisations will be willing to apply to their deceased clients' estates.  In bringing forward the update to the Probate Law, the Jersey Government noted that whilst the de minimus in England and Wales is £50,000, most banks and other financial organisations in that jurisdiction set themselves lower limits; the average limit set by such financial organisations is £26,900. 

At £30,000, the update to the de minimus in the Probate Law is high and goes beyond the current buying power of £10,000 from 25 years ago; the Bank of England online inflation calculator tells us that £10,000 in 1998 could buy goods and services costing approximately £18,500 in 2023.  It is not obligatory to release estate up to £30,000 without a Grant and, depending on their risk appetite, banks and other organisations may decide to apply a lower de minimus. 

The update to the Probate Law is welcome for reducing complexity and cost to bereaved families where the Jersey estate value is relatively low and reducing the caseload of the Probate Division of the Royal Court. However, Jersey banks and other financial organisations will now need to review their internal procedures to ensure that they are ready to meet the additional conditions imposed on the release of small estates without a Grant and consider the risks that they are prepared to accept. 

The case was commenced in May 2014 before the Royal Court in Jersey, when Mr Rokos brought proceedings on restraint of trade grounds against Brevan Howard to challenge contractual restrictions preventing him from trading third party funds and setting up his own hedge fund. The case, which has attracted a great deal of interest from the financial press, was due to be heard on an expedited basis during a 7 day trial in March 2015 (Rokos v Brevan Howard).

However, the parties were able to reach a commercial settlement in late January 2015, enabling Mr Rokos to set up his own fund, in which Brevan Howard will have a financial interest.

Zillah Howard, partner in the Private Wealth and Fiduciary group and Lisa Springate, partner in the commercial litigation team  are included among the most influential women in the International Finance Centres (IFCs).

Zillah Howard has over 25 years’ experience in international private client work and is an active member of the Jersey working party shaping legislation for the private client industry. She has been awarded ‘Best in Offshore’ at the Europe Women in Business Law Awards for five consecutive years. She is recognised as giving "top-notch advice and first-class intellectual ability. She's very knowledgeable, but also very practical in terms of finding solutions where required" and "first-class, phenomenally bright... She is at the top of her game" by the leading legal directories.

Lisa Springate was a winner of the 'Woman of the Year (Business Growth)' 2015 Citywealth Power Women awards and is cited as a 'Leader in their field' by Chambers 2017. She is acknowledged by the leading legal directories as “a hard-working and passionate lawyer, who puts a great deal of effort into dealing with clients personally" and "impressively hardworking and judicious".

Citywealth, the financial publishing, events and networking group, say that the idea of the list, was ‘to recognise women of achievement who are opinion formers, helping to promote business excellence in their home jurisdiction and consolidating the reputations of the financial services industry globally.’ They describe those on the list as the most ‘powerful women in government, private wealth, private client advisory and philanthropy across the International Finance Centres.' They took into account recommendations from leading figures in the financial services industry when compiling the list.

The Citywealth Magic Circle awards have quickly become well established as a leading event in the private wealth industry calendar. They bring together elite advisers and managers in the industry to recognise the achievements of firms and individuals during the past year. The judges include many leading professionals from some of the biggest names in the international wealth management sector. The winners will be announced at a prestigious awards dinner in London on 10 May 2018.

Please vote for us in the International Law Firm of the Year - non UK category by clicking here.

The closing date for voting online is Sunday 15 April 2018.

Henry, a member of the firm’s international private client group in Jersey, has a long list of credentials that includes being listed as a prominent figure in the leading lawyers’ category of Citywealth leaders list in 2015 and 2016.

This year’s winners were announced at a ceremony held at the prestigious venue, the Trafalgar St. James in London on 1 November.

The Future Leaders Awards is in its third year and aims to champion young professionals in the wealth sector and highlight the leaders under forty that are the most talented working in the private client industry today.

The initial submission process is judged by a panel of wealth management professionals to determine a shortlist, followed by an online public vote that makes for ten percent of the vote. Winners are then judged on submission criteria that includes a testimonial from a direct supervisor, achievements for the past year, CSR project involvement, and promotions or qualifications attained in the last year.

Managing Partner, David Cadin, commented: “We’re all very excited for Henry to be recognised as a Gold winner in this category for the second consecutive year. It’s a strong endorsement of not only his significant contribution to the development of the business, but also a reflection of his commitment and dedication to his clients.”

The editor's choice list is chosen by the Citywealth editorial team each quarter and the list aims to bring together lawyers, accountants, family offices, private bankers and trustees who deal with private UHNW clients globally. This list for autumn features leading individuals in the International Finance Centres. The quarterly list is an independent process and the result of a decade-long research programme from peer recommendation, editorial analysis, personal meetings and rigorous verification. The list judges the individuals on four criteria: fees; quality of advice; communication skills and interpersonal skills.

The comprehensive judgment represents a massive win for Cristiana Crociani and her family after five years of hard fought litigation, including a challenge to the Royal Court's jurisdiction to hear the case which the Defendants took to the Privy Council. It rejected the Defendants' appeal in November 2014. By then the Plaintiffs had lost nearly two years in progressing the case to trial and had incurred considerable extra expense. For a case of this size and complexity to be tried a little over two years later shows that Jersey is a robust and effective jurisdiction with excellent case management. The Royal Court also employed the latest technology to run a "paperless" trial, which undoubtedly reduced the number of court days.

Delighted with the result, Cristiana Crociani commented: "Throughout the five years I have worked with Bedell Cristin's litigation team they have been thorough, proactive and relentless in their pursuit of the claims to achieve results. They communicated well, keeping me updated and guiding me through the complex process. I would not hesitate to recommend them."

The case
The case concerned a Bahamian trust settled by Edoarda Vesel Crociani in 1987 for the benefit of her young daughters, Camilla and Cristiana ("the Grand Trust"). Edoarda was the widow of an extremely wealthy Italian industrialist, Camillo Crociani, who had built up a successful engineering, technical and logistics services business in Italy called Vitrociset SPA. He had amassed considerable wealth, including a tremendous collection of fine art. Edoarda had, in her youth, been an actress and appeared in a number of Italian films. She married Camillo, who was 20 years her senior, when she was 30. A financial scandal drove the family from Italy, and Camillo died in 1980 when they were living in Mexico. Edoarda moved to New York with her young daughters and bought a large apartment on Fifth Avenue. She was contemplating taking up residence there and sought advice from the U.S. law firm Finley Kumble about how best to structure her affairs, as at that time she had the benefit of significant income from outside the U.S. as she was then the owner of Vitrociset, founded by her late husband. Finley Kumble went into liquidation soon after, and while the firm's files were not available to the court, it was assisted in understanding the advice which had been given to Edoarda by a few surviving documents and the evidence of eminent U.S. tax experts between whom there was a large measure of agreement.

The key issue in the case was whether Edoarda Vesel Crociani was ever intended to benefit from the Grand Trust. There had been an appointment of assets out of the Grand Trust (with an estimated value of US$132m, comprising a portfolio of investments, receivables and works of art) made in 2010 by the trustees at the time, including BNP Paribas Jersey Trust Corporation Limited ("BNP"). The 2010 Appointment was made to a trust called the Fortunate Trust, of which Edoarda was not only the sole beneficiary during her lifetime, but over which she held extensive powers, including the power to revoke it and to take its assets for herself. As events transpired, following a breakdown in family relations between Cristiana, on the one hand, and her mother and sister on the other, Edoarda did indeed revoke the Fortunate Trust. The provision of the Grand Trust under which the 2010 Appointment was done ("clause Eleventh") expressly provided that such an appointment from the Grand Trust to another trust had to be "in favour or for the benefit of all or any one or more exclusively of the others or other of the beneficiaries (other than the settlor)…". Unsurprisingly, the Plaintiffs' construction of that clause, shared by the Royal Court, was that it precluded an appointment of assets from the Grand Trust to another trust from which Edoarda could benefit. The 2010 Appointment was outside that provision. Cristiana and her own young daughters have now successfully sued as beneficiaries of the Grand Trust to reconstitute the trust fund for what had been paid away to her mother by the then trustees and for lost value since 2010. This breach of trust claim was not the only one but it was the largest claim in the case.

Edoarda's case throughout had been that she was intended to be able to benefit from the Grand Trust through a Bahamian company called the Camillo Crociani Foundation Limited which was named as a beneficiary. However, the Foundation had been set up some months before the creation of the Grand Trust as a not for profit guarantee company with exclusively charitable objects. No doubt anticipating the problem that created for her case, after the failure of the forum challenge, Edoarda amended her case to claim, in the alternative, that if it were found by the court that she could not benefit from the Grand Trust then she had set it up, and settled assets within it, based on a mistake as to her ability to benefit and it should therefore be set aside - a plea that would not have sat easily with her case in the forum challenge which hinged on the terms of the Grand Trust being valid.

In the event, with the trial due to commence on the following Monday, Edoarda wrote to the court on Friday, 13th January (indeed an unlucky day for her co-Defendants) to say she would not attend the trial to give evidence nor would she be legally represented at trial. Camilla had written in similar terms. The Royal Court had little trouble in concluding that both had deliberately decided to stay away. Edoarda's excuse that she was too old and ill to attend was unsubstantiated by any evidence and somewhat weakened in the eyes of the Royal Court by Facebook photographs showing her partying at the Sporting Club in Monaco on New Year's Eve and, as the judgment notes, seemingly in "rude health".

One effect of Edoarda staying away was that the Royal Court quickly dismissed her alternative case in mistake as she was not there to prosecute it. The case was now solely concerned with the construction of terms of the Grand Trust, without evidence of her subjective intent being admissible, set against the factual matrix at the time it was set up.

The most important aspect of the factual matrix was the Finley Kumble tax planning that lay behind the creation of the Grand Trust. The court found, with the assistance of the U.S. tax experts, that the Grand Trust was meant to be a foreign non-grantor trust. By settling it before she took up U.S. residence for tax purposes, a so-called "drop-off" trust, she would not face a federal income tax charge on its income. What she settled on the Grand Trust was a valuable long-term Promissory Note paying interest funded out of dividends from Vitrociset. In time those payments amounted to the sizeable fund, which was paid away in 2010. Key to the success of this tax planning was the requirement that Edoarda Vesel Crociani, as settlor of the Grand Trust, could not benefit from it in any way, including through the Foundation which the court found had exclusively charitable objects. The terms of the Grand Trust, including clause Eleventh, were all consistent with that advice.

Those Defendants who did continue with the trial were Edoarda's fellow trustees at the time of the 2010 Appointment - a Dutch lawyer called Paul Foortse (who was exonerated) and BNP - along with Appleby Trust (Mauritius) Limited ("Appleby Mauritius"). Appleby Mauritius had come to be appointed as the replacement trustee for the Grand Trust in 2012 at which time the proper law of the Grand Trust was changed from that of Jersey to that of Mauritius. The Royal Court granted the Plaintiffs' application to set aside the appointment as not being in the interests of the beneficiaries of the Grand Trust as a whole. It went further in finding that it had been motivated by the desire on Edoarda's part to impede Cristiana's claims and the subsequent conduct of Appleby Mauritius demonstrated that it shared that intention.

Appleby Mauritius emerges from the judgment in a poor light. The worst of its behaviour concerns its astonishing decision in early 2016, whilst these proceedings were ongoing, to stand down as trustee without notice to the court or the other parties. Before it did so, it purported to amend the terms of the Promissory Note (the last asset remaining in the Grand Trust after the 2010 Appointment) delaying its repayment by the debtor company (now owned by Camilla) from December 2017 to December 2022. The Royal Court found the exercise to be manufactured and not a genuine negotiation. Having done so it purported to appoint a Mauritius service provider called GFin as the new trustee and to assign the amended Note to it. Both it and GFin purported to confer exclusive jurisdiction on the courts of Mauritius despite the ruling of the Privy Council and GFin used that as a basis for launching fresh proceedings in Mauritius (still ongoing) with Edoarda Vesel Crociani as paymaster asserting that the Royal Court lacked jurisdiction to decide the present case. In setting these actions aside as breaches of trust the Royal Court went further in holding that Appleby Mauritius had interfered with the administration of justice in Jersey by its actions.

The Note remains in the hands of GFin. Appleby Mauritius have been found liable in breach of trust for its loss and there is to be an inquiry into the amount of compensation that will have to be paid. The face value of the Note lies in the region of Euro 52m and Appleby Mauritius has been ordered to pay this money into court. There are other inquiries to be carried out such as into the loss in value of the portfolio appointed out in 2010 and the value of certain paintings also lost to the Grand Trust through the 2010 Appointment. In the round the claims successfully brought home by the Plaintiffs following the trial could amount to US$200m.

We would welcome the opportunity to meet with you or one of your colleagues.

Please contact Tom if you would like to arrange a meeting.

The awards are now in their seventh year and were established to highlight the excellence of the advisers and managers in the private wealth sector in the major international financial centres.

The awards will be judged by an international panel of judges and will be announced at an awards ceremony in London on 25 January 2018.

You can register your vote for us by clicking here. Voting closes on 1 December 2017.

Test for beneficial ownership

The Law imposes a statutory duty on resident agents to keep an up-to-date record of the beneficial owners of legal persons for which they are responsible. The Regulations propose a three stage test to enable such owners to be identified and a beneficial owner is defined as the natural person who:

• ultimately controls a legal person through ownership; or
• ultimately controls a legal person through other means; or
• holds the position of a senior managing official of the relevant legal person.

Ownership threshold - Company, LLP or Foundation

A person or entity will be deemed to control a company or LLP if:

• they hold, directly or indirectly, more than 25% of the total shareholding or voting rights; or
• they hold the right to remove a majority of the board of directors (whether they meet the 25% threshold or not).

Individuals who own shares or rights jointly each will be treated as holding that share or right.

A person or entity will be deemed to control a foundation if:

• they hold, directly or indirectly, more than 25% of the voting rights or the right to remove a majority of the foundation officials;
• they are a beneficiary with a vested interest;
• they are any other person who benefits from a foundation; or
• they are the default recipient of a foundation's assets upon termination.

Trusts

Where a relevant legal person is controlled by a fixed trust (i.e. not a discretionary trust) the Resident Agent is required to look through the arrangement and identify any beneficiaries of the fixed trust. Such beneficiaries will be deemed to be the beneficial owners of the underlying entity.

For discretionary trusts the position is less straightforward:

1. Any natural person trustee will qualify as will any Guernsey corporate trustee and any director (or equivalent) thereof.
2. Resident agents will be required to look through non-Guernsey corporate trustees and identify any natural persons who would be the beneficial owners of that trustee. In addition they will also need to identify the non-Guernsey trustee and its directors (or equivalent).
3. Any person who has the power to appoint or remove trustees; amend or revoke a trust deed; or the power to direct the investment decisions of or the distribution of funds from a trust will also qualify as a beneficial owner of the underlying entity.

Implementation & Guidance

All Guernsey companies, LLPs and foundations registered from 15 August will be required to provide their beneficial ownership information at the time of incorporation.

The timeline for populating the beneficial ownership register for all companies formed prior to 15 August 2017 remains 28 February 2018 and resident agents are expected to be able to make beneficial ownership submissions from 15 August 2017 onwards. Guidance from the Guernsey Registry as to how to populate the Register can be found here, including template records and guidance on filing submissions online.

Further details as to the requirements under the Law can be found in our February 2017 Briefing.

For further information contact Alasdair Davidson.

We are one of only two firms from the Channel Islands included as a finalist for Contentious Trust & Estate Team of the Year (midsize) and we have also been short listed for International Legal Team of the Year (midsize).

The awards are seen as a hallmark of quality within the private client industry and STEP say that this year there were a record number of entries from 24 countries, making it ‘a great achievement’ for any firm named as a finalist. More than 650 leading private client practitioners are expected to attend the gala dinner in London on 6 September when the awards will be announced.

It is only a short time since the firm completed a management buyout of its trust business to evolve into a standalone international law firm. We have since implemented a management re-structure, re-branded the business and renewed our focus on client service excellence, so it is encouraging that the consistent quality of our work has been recognised once more in these key private client awards.

Earlier this year, Bedell Cristin was awarded the Client Service accolade in the Chambers Europe Awards for 2017.

In their seventh year, the Euromoney LMG Europe Women in Business Law Awards recognise the best lawyers in a range of practice areas. Zillah is nominated alongside lawyers from London, Dublin and Switzerland. She is a five time previous winner of ‘Best in Offshore’ in the same awards, a category that is not included this year. She is also ranked in the ‘leaders in their field’ category in Chambers 2017.

Zillah, a partner in the firm’s international private client group, is an active member of working groups in Jersey shaping legislation in trusts, foundations and charities law and is a regular conference speaker on these issues. She will be speaking on private wealth topics as a panellist at the Jersey Finance conference which takes place on Tuesday 16 May 2017 at 8 Northumberland Avenue in London.

The winners of the Europe Women in Business Awards will be announced at a ceremony at the Jumeirah Carlton Tower Hotel in London on June 15.

Please click here to read our briefing on the subject.

At a ceremony at the Grosvenor House Hotel in London on Friday, April 7, the award was presented to Bedell Cristin Partners, Tim Pearce, head of the banking and corporate team and Bruce Scott, head of the London office. According to the judges, the firm demonstrated "exemplary business acumen and industry working knowledge" and "a willingness to always work to tight deadlines."

The Chambers Europe Awards are among the most prestigious in the legal calendar and recognise the work of national and international law firms across Europe on the basis of research for the upcoming edition of Chambers Europe. They reflect notable achievements over the past 12 months including outstanding work, impressive strategic growth and excellence in client service.

Among the comments in the Chambers Directory, Bedell Cristin was recognised for being "responsive, skilled and exceptionally knowledgeable" and "extremely focused, diligent and service orientated."

David Cadin, Managing Partner, commented:

"The award is a testament to the dedication of everyone at the firm in consistently meeting clients’ needs and I am delighted that our ongoing focus on building strong and enduring client relationships has been recognised. Our commitment to the highest standards of client service continues to be the key driver of our business and we are working hard to further enhance our dedicated approach to exemplary client care."

The Guernsey Funds Forum provides networking opportunities for investors, fund promoters and professional advisers and valuable insight into current issues and trends affecting Guernsey's world-leading investment fund industry. Please click here for further information.

We would welcome the opportunity to meet you or your colleagues: for more information please visit us at stand 7 or contact Kate, Richard or Ann if you would like to arrange a meeting.

The Citywealth Magic Circle awards are among the leading accolades in the international financial services marketplace and recognise the achievements of the leading firms in the finance and legal industries working in the private wealth sector. Judging is undertaken by leading professionals from the industry and there is an opportunity for clients to vote also. The winners will be announced at a prestigious awards dinner in London on 10 May.

Should you feel able to support our nomination, we would be delighted to have your vote. Please follow this link to cast your vote.

The closing date for voting online is Friday 21 April 2017.

The release, which can be found here, goes on to state:

"Over the next 12 months, large businesses that employ more registered workers than other businesses in the same sector will have their requirements carefully assessed by the Population Office."

(Registered workers are those persons ordinarily resident in Jersey for three continuous months and who do not fall within the "Entitled", "Licensed" or "Entitled for Work Only" categories. Our briefing, which can be found here, contains a detailed summary of the relevant law.)

The most recent Jersey Labour Market Report (June 2016) recorded the following information regarding "registered" worker numbers:

• 6,230 were employed in the private sector: an increase of 160 since June 2015;
• 90 were employed in the public sector: a decrease of 10 since June 2015;
• businesses falling within the "hotels, restaurants and bars" category employed the most registered workers (2,500);
• 640 were employed by business falling within the "financial and legal activities" category;
• sectors employing the fewest numbers included: "computer and related activities" (60); "manufacturing" (40); and "electricity, gas and water" (20).

A link to the report can be found here.

The impact of the measures, and their effectiveness, remains to be seen. However, the statistics indicate that employers operating in hospitality, agriculture, construction - and possibly those in the financial (and related) sectors of Jersey's economy - are most likely to be affected.

What are the main 'take-aways' for directors?

The case establishes that past directors can rely on indemnities in a company’s Articles but to be sure they can do so they should make it clear when accepting their appointment that they will be doing so as a term of their service. The Judge also clearly rejected the idea that the wording of the indemnities meant that they only applied to those currently employed by the company as defying commercial common sense and reasonableness.

What is the background?

A director (‘X’) was employed by a management services company (‘DMS’) to be a non-executive director of TAM. DMS had a contract with TAM but X did not have a direct contract with TAM. X wanted to rely on indemnities in TAM’s articles of association ('Articles').

Did she say she would rely on those indemnities?

Before accepting her appointment, X had made it clear to TAM that she expected to rely on the indemnities in the Articles. It was argued that because Articles are a form of contract between a company and its shareholders and X was not a party to that contract she could not rely on those indemnities. The Court found that it was clear that X had accepted the appointment as director of TAM on the basis that the indemnities in the Articles would apply and so they had been incorporated into her terms of service.

How could the indemnities apply?

The Articles of a company form a contract between the company and its shareholders, but not between the company and its directors. However, where the company appoints or employs a director ‘on the footing’ of the Articles then the Court found that terms in the Articles are embodied in and form part of that contract for service as a director. The Court found this will be the case where, as here, the director does not have a separate written contract of employment or service contract with the company and where the terms to be incorporated into the basis of appointment are indemnities in the Articles ‘comparatively little’ will be needed in order to to show that they were incorporated.

Was there any specific reference to the indemnities?

From the outset X had made it clear that the quote for her services as a director was conditional on the Articles containing indemnity provisions. She did not sign her director's consent to act until the indemnities in the Articles had been received and reviewed by those who represented her. In an email she wrote that she "…assumes that the director(s) will be indemnified under the Memorandum and Articles of Association of the Company (ies)". The Court considered this clearly established X had accepted her appointment as a director of TAM on the footing that the indemnity provisions in the Articles would apply to her appointment.

When does the Policy apply?

The Policy states that CIMA must give prior approval to anyone wanting to conduct Mutual Fund Administration (‘MFA’) in or from within the Cayman Islands (‘Cayman’). The Policy sets out how CIMA will assess those who apply to do so, although it will also apply: the Mutual Fund Administrators Licence (Applications) Regulations 2001 (the ‘Regulations’); the Anti-Money Laundering Regulations (2017 Revision) (‘AML Regulations’); the Guidance Notes on the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands (the ‘AML Guidance Notes’); and any other law, policy or statement of guidance which is relevant to the application.

Summary
Currently, employers who wish to set up employee incentive arrangements can do so via two routes:

• An approved route: this means that the arrangement must be set up under the existing pensions framework in order that the arrangement can be approved by the Jersey Comptroller of Taxes as being tax exempt. Such an arrangement must be registered with the Jersey Taxes Offices to obtain approval.  Further, it must have a person who is regulated by the Jersey Financial Services Commission to act as the trustee. A key feature with this option is benefits can only be drawn by employees upon retirement age, being age 50; or
  
  
• An unapproved route: arrangements can be set up without approval from Comptroller of Taxes. Such arrangements do not need to be registered with the Comptroller of Taxes or the Jersey Financial Services Commission.  The benefits provided by such arrangements can be flexible. Specifically, there is no requirement that they must be taken upon reaching retirement age. The Jersey Taxes Office provides a tax concession for benefits paid to non-Jersey residents so that they will not be subject to Jersey tax.

The new ISP legislation seeks to combine the best elements of the above so that an arrangement can be set up to provide flexible benefits, with approval from the Comptroller of Taxes as being tax exempt.

Bedell Cristin has been instrumental in lobbying the government in Jersey and shaping this new legislation, which will serve clients from all over the world.

The law came into force on 1 January 2019, as an amendment to the Income Tax (Jersey) Law (1961) (the "Tax Law").

What is an ISP?
An ISP is a scheme which contains all of the following features:

• its sole purpose is the provision of benefits in respect of persons' employment wholly outside Jersey;
• it is established under an irrevocable trust under Jersey law by an employer who is not resident in Jersey;
• it has trustees (either two or more individuals or a corporate) who are regulated by the Jersey Financial Services Commission; and
• it is not a scheme which comes within the pensions framework under the Tax Law.

Why introduce ISPs?
Globally, there is a growing demand for international savings arrangements.  In a recent international pension plan survey conducted by Willis Towers Watson, it was found that global companies are seeking employee incentive solutions (whether be pensions or other form of incentive arrangements) to be provided to their internationally mobile employees or local employees where local arrangements are inadequate or absent.

The survey found that international savings plans (as well as international pensions plans) are offered by companies in over 20 business sectors, the key sectors being banking and finance, oil and gas, and industrials.

42% of the 733 companies that participated in the survey said that they are looking for schemes that have a "savings" objective as opposed to a longer term pensions objective.

62% of the plans have global coverage with the remaining plans being restricted to different regions.

The assets under management in respect of funded plans are estimated to be up to US$13 billion.

What are the advantages of a Jersey ISP?
Where employers operate in volatile sectors or are based in countries with a high political risk, a Jersey ISP can protect the employees' benefits against creditor, insolvency and political risks.

The benefits that can be provided by an ISP are not prescribed and therefore can be wholly flexible and tailored to suit the specific circumstances of the employer as to the type of benefits they wish to provide to their employees. For example, employees may want flexibility as to when they can draw upon the benefits, such as when "life changing events" occur (including but not limited to change of employment, redundancy, divorce, children entering university or needing a deposit for a mortgage for property purchase). Having an approved scheme that provides such flexibility is unique and therefore helpful in attracting and retaining key talent.

Any income derived by the ISP, such as gains on investments, will not be taxable in Jersey. Payments to members (provided they are not Jersey residents) will also be exempt from tax in Jersey.

It is a requirement of the Tax Law that the trustee of an ISP be regulated by the Jersey Financial Services Commission. This means that the scheme will be well run by service providers who meet the high regulatory standards set by the Jersey Financial Services Commission.

Given that ISPs are approved by the Taxes Office, they will be expected to file regular scheme returns to the Taxes Office. This additional layer of supervision will ensure that schemes will be properly managed.

Are there any downsides?
An ISP must have Jersey regulated trustees. Therefore, employers will not be able to administer the schemes themselves, and the engagement of regulated trustees will incur costs.

Once funds are made into an ISP by employers, the general rule is it will not be possible for the funds to be returned to the employer except in exceptional circumstances. There are some cases where it will be possible for funds to be returned, but this will need to be considered carefully at the scheme establishment stage.

Why Jersey?
Jersey offers a robust, modern and sophisticated legal framework which is vital to the health of the finance industry worldwide.

Jersey lawyers and service providers have a wealth of experience in assisting clients from all over the world in establishing structured products and specialist vehicles that meet a whole range of financial and investment objectives.

Case study
Company X is an international oil and gas company with employees in the United Arab Emirates, South East Asia, US, Brazil and Australia. Many of the employees go on secondment between these jurisdictions.

Company X wishes to provide an international savings arrangement for its internationally mobile employees, as well as its employees in the United Arab Emirates and South East Asia.

Company X decides to set up a Jersey ISP which has 3 sections: one for the internationally mobile employees ("International Section"), one for the employees in the United Arab Emirates ("UAE Section") and the final section for employees in South East Asia ("SEA Section").

For the International Section, Company X decides to provide benefits that can offer the most flexibility given that the employees do not have a long term connection in any particular jurisdiction. As part of the remuneration package, Company X will contribute 10% of an employee's salary into the International Section of the ISP. The benefits can be drawn by the employee upon the occurrence of certain life changing events, such as serious ill-health, purchase of a property, retirement, family assistance and redundancy.

In relation to the UAE Section, Company X decides to provide end of service gratuity benefits which are due on the termination of employment as required by UAE law.

In relation to the SEA Section, Company X decides to provide conventional pension benefits so that benefits can only be drawn by employees upon retirement (age 50) except where employees suffer serious ill-health. The SEA Section will require separate approval under the pensions section of the Tax Law.

What next?
The Taxes Office will be publishing guidance notes on the approval process for ISPs. Bedell Cristin has assisted with this process.

Bedell Cristin can advise employers, service providers and investment advisers on all aspects of an ISP.

What is economic substance?

To meet the ‘Economic substance’ requirement, a Cayman company or other entity must be carrying out substantial business activity which is related to the line of business that the entity conducts in Cayman.

Are these rules just for Cayman?

No. The legislation is being introduced so Cayman can meet its obligations as one of the 123 jurisdictions who are members of the Organisation for Economic Co-operation and Development (‘OECD’) Base Erosion and Profit Shifting (‘BEPS’) Inclusive Framework (‘Framework’). Cayman has been a member of the Inclusive Framework since 2017.

What is the Inclusive Framework?

The Inclusive Framework sets the global tax standard regarding structures that aim to attract profits in jurisdictions in which they do not conduct real economic activity. For more information see our earlier piece Cayman Government Advisory on OECD Substantial activity requirements.

Will this affect other jurisdictions?

Yes, as this is a global standard.

How does this help Cayman with respect to the EU List of Non-Cooperative Jurisdictions for Tax Purposes?

This proposed legislation will help Cayman fulfil its commitment to the EU to have legislation in place by 31 December 2018.

What should we do now?

The Cayman Financial services industry body, Cayman Finance, is encouraging members to familiarise themselves with the Bill and to take Cayman legal advice on what the new law means for them and their clients once the Law has been passed and the Guidelines published on how the Law will operate in practice. They say: “We anticipate that our sophisticated clients will adapt as required and take this in their stride. It is worth noting that all of Cayman’s main competitor jurisdictions are in a similar position as BEPS Inclusive Framework members.”

eprivateclient compiles the list following open nominations and a rigorous judging process. It acknowledges the leaders and influencers who provide the highest quality service to the private client industry.

Mr Bennett is head of the International Private Client practice at Bedell Cristin and has significant experience in advising local and international clients on all aspects of trusts, foundations and related corporate and commercial law issues.

“Edward’s knowledge and expertise in the international private client arena mean that his recognition by eprivateclient is very much deserved,” said David Cadin, Bedell Cristin managing partner in Jersey.

“He is an exceptional lawyer and has cultivated strong relationships with his clients. We know that our clients hold him in high regard and value his advice; we’re pleased that his reputation as a leading figure in his field has been recognised in this listing.”

New Regulatory Handbook

Published in the Cayman Islands Gazette on 3 December 2018 is the new November 2018 edition of the Regulatory Handbook Volume 1 which replaces the August 2017 version. The Regulatory Handbook – Appendices 1 replaces the February 2017 version. CIMA’s Regulatory Handbook sets out the policies and procedures CIMA, its committees and officers must follow in performing CIMA’s regulatory and co-operative function and gives specific information on matters such as CIMA’s approach to supervision, supervisory returns and AML procedures.

Amendments to CIMA’s AML Guidance Notes

Amendments to CIMA’s December 2017 AML Guidance Notes on the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands were published on 3 December 2018 (although dated November 2018). We will address the changes in more detail in a later piece, but be aware that The Guidance Notes (Amendments) On the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands sees the following sections replaced or added:

• Part II s.2C para. 8 (on AML compliance officer’s delegation and natural persons) is replaces and new paras 9-14 on Reliance/Delegation – AML/CFT Functions;
• Part II s.4B para.s on principles to be applied in delegation paras 65 and 66 are replaced by a new para 65 and para 67 becomes a new para 66;
• Part II s.5 has a whole new para. D on simplified measures;
• Part II s.9B para.2 on Money Laundering Reporting Officers is replaced as is para 6 which is replaced by a new para 6 and 6A;
• PartVI s1 para G is replaced, the para.s on General, Mutual Funds and Mutual Funds Administrators.

Rules and Guidance on Assets and Liquidity

The following Rules and Guidelines were also published on 3 December 2018

• The Rule Management of Credit Risk and Problem Assets;
• The Rules and Guidelines – Liquidity Risk Management;
• The Statement of Guidance Credit Risk Classification, Provisioning and Management

CIMA Approved Stock Exchanges

CIMA also published its List of Approved Stock Exchanges (i.e. those approved in accordance with CIMA’s Regulatory Policy for Approved Stock Exchanges).

The forms relate to all AML Officers which are: Money Laundering Reporting Officer (‘MLRO’), Deputy Money Laundering Reporting Officer (‘DMLRO’) and the Anti-Money Laundering Compliance Officer (‘AMLCO’).

31 December 2018 AML Officer deadline: CIMA Publishes FAQs for REEFs AML forms | News Updates

The new ISP regime will serve multi-national companies wherever they are based in respect of their employee incentive arrangements, as well as employers in the Gulf Cooperation Council (GCC) to assist with their end of service benefit obligations.

Proposed by the Jersey Pensions Association (JPA) with support from Jersey Finance, the scheme enables large international institutions with globally mobile employees to establish savings plans in Jersey for non-resident employees. An ISP is distinct from a pension scheme, as it can pay out benefits not just on retirement, but in a wide range of circumstances.  For example, it can provide benefits to employees when their employment ceases, when they are transitioning between jobs, retiring or faced with other life changing events. 

Nancy Chien (chairman of the JPA and Bedell Cristin partner) has been instrumental in shaping this new legislation.  She said: “Employers are looking for flexible employee incentive arrangements for retaining key talent.  Jersey has an excellent track record in the pensions and share plans space, and the introduction of ISPs enhances that by demonstrating that we’re a modern jurisdiction that can adapt to the changing needs of clients. 

International organisations want to establish sophisticated solutions in a well-regulated, tax neutral jurisdiction.  ISPs are flexible and can be tailored to suit the needs of the employer and employee.  We have no doubt that they will be popular for employers worldwide.”

Bedell Cristin can advise on whether an ISP might be right for you, prepare the trust documents, advise on the design of the plan and recommend scheme providers.  Please get in touch with Nancy Chien or Lydia Carter. 

The move is to prevent business activity avoiding the Substantial Activities Requirements which apply to all preferential regimes for geographically mobile income by relocating to a zero-tax jurisdiction. (Consult the new global standard on substantial activities in no or only nominal tax jurisdictions here.)

The STEP Private Client Awards are international; they are considered a hallmark of quality within the private client industry as they recognise and celebrate excellence among private client solicitors, lawyers, accountants, barristers, bankers, trust managers and financial advisors.

An independent panel of experts considers various criteria as part of the judging process to determine the winners. Bedell Cristin's recent success in some major contentious cases and the client-friendly way it operates helped to secure the team this prestigious award.

“We are thrilled with the result,” said Bedell Cristin managing partner, David Cadin.

“We have an exceptional litigation team at Bedell Cristin, and this award is recognition of their hard work and contribution to the global private client arena. The team prides itself on delivering the best possible service and results for all clients.”

eprivateclient compiles the list following a judging process that focuses on the strength of the nomination, achievements over the past 12 months and career progression. Earlier this year Ms Semlitsch was named in the inaugural Channel Islands Top 35 Under 35.

Ms Semlitsch is part of Bedell Cristin’s contentious and non-contentious trusts team in Guernsey and is dual-qualified as a solicitor in Australia and, more recently, in England and Wales. She joined Bedell Cristin in 2015 as an associate and her legal capability, maturity and exceptional client service helped her to reach senior associate level at age 27.

“Jasmin’s work ethic, together with her knowledge, expertise and commitment to client service make her worthy of this recognition,” said Alasdair Davidson, Bedell Cristin partner and head of the private wealth team in Guernsey.

“She is an exceptionally strong lawyer and she displays promising talent which will not only ensure her future success but greatly benefit our clients. We are very proud of Jasmin and her recognition by eprivateclient first in the Channel Islands and then now in the UK is an impressive achievement. She is a credit to our team.”

We would welcome the opportunity to meet with you or one of your colleagues. Please contact Richard Sharp if you would like to arrange a meeting.

This event is an ideal opportunity to find out about Guernsey’s financial services offering, particularly in relation to its insurance and reinsurance sectors. The event is held during the same week as Les Rendez-Vous de Septembre (7 – 12 September) so Guernsey is able to position itself at the heart of the week-long congress.

The awards recognise the top young professionals in the wealth sector. Partner, Nancy Chien, and Senior Associate, Henry Wickham, are both nominated in separate categories. Nancy has been shortlisted for Lawyer of the Year IFC - Partner and Henry, Lawyer of the Year IFC - Senior Associate.

Being shortlisted for these awards is testament to their dedication and drive to provide excellent service as well as in recognition of their wider roles in the industry. 

We would appreciate your support for Nancy and Henry - please vote for them by clicking here. Voting continues until 19 October 2018.

Whilst recognising the importance of preserving the flexibility and reputation of the Trusts Law, Amendment No.7 makes changes to provide clarity where appropriate and to introduce new provisions, allowing Jersey trusts to develop in a competitive and international market place.

The amendments are welcomed and support Jersey's position as one of the world's leading private wealth jurisdictions.

Please click here to read our briefing and, for more information, please contact Zillah Howard (a member of the Trusts Law Working Group in Jersey), Edward Bennett or Nancy Chien.

Jersey recently hosted its second annual International Pensions Conference and much of the focus was on the future: How does Jersey maintain a competitive advantage over other jurisdictions? How do we continue to innovate to stay ahead of the pack and offer solutions that providers really want? How do we leverage the expertise and knowledge we have here to take Jersey into the future?

The JPA, supported by Jersey Finance, has been working hard to keep abreast of international demands and opportunities. One area that is of particular interest to large multinational corporates is the use of international savings plans. The JPA is lobbying the States of Jersey to amend the Income Tax (Jersey) Law 1961 ("Tax Law") so that such savings plans can be approved officially and make it more attractive for them to be set up and administered in Jersey.

Why international savings plans?

Clients’ demands for pensions and savings products have evolved in recent times. The concept of having a long-term pension with your lifelong employer to safeguard your money and provide for you in retirement is outdated. Employers and employees are now more mobile so it's crucial that the vehicles they use to hold their long-term savings can serve their needs. Such vehicles must allow savers to move their money more freely, as opposed to being tied to a single retirement date, and allow them to have more flexibility and control over where and how their money is invested.

This explains the appeal of an international savings plan, which allows employers to provide benefits to employees on the occurrence of certain major life events, such as the termination of their employment, divorce, children entering university or needing a deposit for a house.

In order to establish these plans, international corporations typically look for a tax neutral jurisdiction which has the legal framework to set up vehicles that can provide flexible rules on benefit payments, tax approval from the relevant body and oversight from an established regulator.

The JPA's proposal

The JPA is proposing that the current Tax Law is amended through the introduction of a new provision which:

• permits the Jersey Comptroller of Taxes to approve such international savings plans; and
• provides beneficiaries of such plans, who will be non-residents, to not be subject to tax in Jersey.

This change would introduce legislation that is modern, fit for purpose and actively promotes Jersey as a jurisdiction that recognises the relevance and importance of international savings plans. In our view, such a provision in the Tax Law would enhance the appeal of Jersey for administering and structuring savings plans and enable Jersey to showcase itself as a leading jurisdiction for providing these services.  

A modernised tax law would signal that Jersey is open for business and able to capitalise on opportunities such as end of service benefit schemes from the Gulf Cooperation Council (GCC), savings structures from the Far East and flexible lifetime savings plans from many other international employers with globally mobile employees.

The number of globally mobile employees will continue to rise and Jersey should position itself to take advantage of this growing market and cement its reputation as a leading jurisdiction in the long term savings space.

Rapid adoption of our recommendations and the subsequent promotion of Jersey’s offering would also increase the island’s reputation for innovation and set it apart as a jurisdiction of choice for international savings plans.

The conference takes place in Barcelona on 13-14 May 2018 and brings together solicitors, barristers, offshore lawyers and trust practitioners working in the ever changing world of contentious trusts.

The programme this year focuses on future proofing trusts, issues surrounding trusts in modern society (including the dynamics of the modern family unit and developing technology) and increasing judicial interference with trusts.

Robert Gardner will be on the 10am panel chaired by Emma Jordan of Taylor Wessing discussing 'Modern trusts for modern families - how trusts are evolving in the face of the modern family unit'. They will consider the practical challenges to trusts faced by modern family issues, such as surrogacy, adoption and co-habitation.

Alasdair Davidson will be part of the 2.15pm panel chaired by Maxine Mossman of Clifford Chance entitled 'No more secrets' which will look at the erosion of confidentiality in relation to trust affairs and whether this trend is likely to continue.

Data controller:  means [..] a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed.

Recipient: in relation to any personal data, means any person to whom the data are disclosed, including any person (such as an employee or agent of the relevant data controller, a relevant data processor or an employee or agent of a data processor) to whom they are disclosed in the course of processing the data for the data controller, but does not include any person to whom disclosure is or may be made as a result of, or with a view to, a particular inquiry by or on behalf of that person made in the exercise of any power conferred by law.

The case involves large sums initially advanced by Kaupthing Bank and ultimately borrowed by Investec Trusts (Guernsey) Ltd and Bayeux Trustees Limited (both Guernsey based trustees) who administered a Jersey law governed trust. The most relevant issues from the judgment for trustees can be summarised by reference to the following five questions:

Question 1: does Article 32 of the TJL protect the trustees of a Jersey law trust when the issue of their liability is being litigated before the Royal Court of Guernsey? To the relief of the trustees, the majority of the Privy Council confirms that the extent of their liability (as trustee) is governed by the proper law of the trust (Jersey law), which includes the protection offered by Article 32.

Question 2: how does Article 32(1) change the ''normal'' rules of trustee liability? The Privy Council refers to one of the well-established rules of English law, that where a trustee transacts, it does so personally. This puts at risk not just the assets in the trust being administered, but also the trustee's personal assets. Where the trustee of a Jersey law trust transacts, however, the effect of Article 32 is that the trustee can transact either in a personal or in a fiduciary capacity. Where the trustee transacts in a fiduciary capacity and the counterparty is aware of this, the latter's recourse is limited to the trust assets and cannot extend to the trustee's personal assets.

Question 3: does the creditor counterparty have direct recourse against the trust assets? The Court of Appeal's view was that creditors had a form of direct recourse to the trust assets, rather than deriving their rights by way of subrogation to the trustee's rights of indemnity. The Privy Council disagrees, such a result being a ''radical departure'' from English law unduly favouring creditors over beneficiaries. One effect of this is that if the trustee loses its right of indemnity (perhaps as a result of a breach of trust) then there is no such right to which the creditor can be subrogated.

Question 4: when is the trigger point allowing the trustees' rights to pay, or seek reimbursement for, reasonably incurred expenses and liabilities? Can the trustees' right to reimbursement (out of trust assets) in respect of the loans (Article 26(4) of the TJL) be engaged but subsequently lost? The Privy Council confirms that if the loans were reasonably incurred, resulting in indemnity rights being triggered, then the indemnity cannot itself be lost, for example by a subsequent unreasonable failure to discharge those loans.

Question 5: can the trustees rely on the statutory limited recourse provisions to protect themselves from earlier adverse costs orders? In the Privy Council's view they cannot: Article 32 is not engaged, since this would be inconsistent with another provision (TJL Article 53), which provides the court with full discretion as to costs.

Lord Mance disagrees with the majority's approach on the first four questions: he regards the issue of a trustee's liability to a third party as being governed by the law of the obligation in question, which is not overridden by the law of the trust. Further, he sees no justification for characterising a trustee's ''capacity'' in different ways. Last, he sees the right to reimbursement under Article 26 of the TJL as operating at the time reimbursement is claimed, with reasonableness being judged by reference to all conduct which has gone before.

This judgment represents an important analysis of Article 32. It is clear from the judgment that the Guernsey equivalent (section 42 of the Trusts (Guernsey) Law 2007) will be interpreted in a similar way. Trustees will be relieved. Some re-balancing as between creditors and beneficiaries (favouring the latter) has taken place. Whether or not the protection offered to trustees by the Jersey and Guernsey limited recourse provisions are ''transportable'' to courts outside the Channel Islands is quite another matter. For the time being, to give the issues some broader context, trustees and their contractual counterparties are always free to transact on whatever terms they wish. Trustees may wish to ensure limited liability provisions form part of any contract and their counterparties may deem it appropriate to take security or guarantees.

The Citywealth Magic Circle awards are held annually in the Spring to find the best advisers and managers in the global industry. They bring together a top level group of elite advisers and managers in the industry to recognise the achievements of firms and individuals during the past year. The judges include many leading professionals from some of the biggest names in the international wealth management sector. The winners will be announced at a prestigious awards dinner in London on 10 May, 2018.

In the meantime, there is an opportunity to vote in support of our nomination and your vote could make a difference. Should you feel able to support our nomination, please click here to vote. 

The closing date for voting online is Friday 26 April 2013.

For any further information about Bedell Cristin please contact Rebecca Stannard. 

Whilst recognising the importance of preserving the flexibility and reputation of the Trusts Law, Amendment No.7 makes changes which will provide clarity where appropriate and also introduce new provisions to allow Jersey trusts to develop in a competitive and international market place.

The amendments are welcomed and support Jersey's position as one of the world's leading private wealth jurisdictions.

Please click here to read our briefing and, for more information, please contact Zillah Howard (a member of the Trusts Law Working Group in Jersey), Edward Bennett or Nancy Chien.

This listing reflects the increased interest TISE has experienced in relation to the listing of corporate and high yield bonds, in part driven by the streamlined listing process as well as the numerous international recognitions obtained.

The Bedell team was led by partner Martin Paul with assistance from associate Louise Ridgway.

Martin Paul commented: "We were pleased to assist Cineworld and Slaughter and May in connection with this listing. The transaction reinforces the trend highlighting The International Stock Exchange as the exchange of choice for corporate and high yield bonds."

The Island's innovative system of charity registration:

• offers two alternative categories of registration, with the choice impacting on the accessibility of information on the public register;
• provides for registration to be voluntary, albeit relevant in determining entitlement to certain charitable tax reliefs and to the use of the term "charity".

With the introduction of this innovative system of registration for charities, Jersey is well-positioned to operate as a centre of excellence for philanthropic wealth structuring:

• The Island's trusts and foundations legislation places a strong emphasis on the importance of flexibility, so that structures can be tailored to each philanthropist's own requirements.
• There is a choice in relation to publicity. For those not wishing to have a public profile in relation to their philanthropy, trusts can be an attractive choice as there is no public registration of trusts in Jersey. For those who are keen to have a public profile, there is a range of registration options to choose from. For some families, registration as a foundation will be appropriate; for others, registration (of a trust or foundation) as a charity under the Charities Law, either on the general section or on the restricted section, will be preferred.
• Jersey is a tax neutral environment in which to establish structures, with Jersey tax exemptions also available subject to compliance with relevant conditions.

Please click here to read our briefing and, for more information, please contact Zillah Howard (a member of the charities law working group in Jersey) or Edward Bennett.
 

In the fourth quarter of 2017, 396 properties were sold in Jersey.

On a calendar year basis, the turnover of properties was 7% higher than in 2016. This increase was driven by an increase in flat sales, which are up by 26%. The number of house sales, however, has declined by 6% in the calendar year.

The statistics show that on a calendar year basis for 2017:

• The Jersey House Price Index was 3% higher than in 2016
• All property types saw average prices increase in 2017
• 2-bedroom flats together with 3- and 4-bedroom houses all recorded their highest ever annual averages

Further statistics report that for Q4 2017:

• Overall housing market activity, on a rolling four-quarter basis, was essentially unchanged when compared with the previous quarter (Q3 2017) and 10% higher than the corresponding quarter of 2016
• On a rolling four-quarter basis, rental prices in Jersey were essentially unchanged during the year ending Q4 2017 compared with the previous quarter (ending Q3 2017)

Priya Jobanputra of Bedell Cristin’s property team has observed both the benefits for homeowners and the difficulties that some buyers may face.

“It is great to see Jersey property thriving. At the end of 2017, Jersey house prices were on par with London and all property types had increased in value. This is fantastic news for homeowners. However, buyers trying to get on the ladder or young families looking to move up the property ladder may be stifled.

By way of example, since 2007 property prices have increased by 33% whilst earnings have increased by just 26%. As wage inflation lags behind housing inflation and lenders demand large deposits, first time buyers are finding it increasingly difficult to get on the housing ladder.”

She continued: “However, there may be hope for some first-time buyers as a new law was passed last week which opens the door for the use of shared equity schemes in Jersey.

Shared equity schemes allow buyers to combine a small deposit with a lower than average mortgage size by providing the buyer with an ‘equity loan,’ which covers a percentage of the property’s value.

The value of the equity loan generally fluctuates with the value of the property, so the amount the buyer pays depends on the value of the property at the time you repay.

We will have to wait and see if the States use this opportunity to aid buyers.”

Mean prices for individual property types 2013 to 2017:

Tom Davies commented: “It’s a pleasure to have assisted GII and Rasmala on this substantial acquisition which showcases Bedell Cristin’s familiarity with the Islamic finance market as well as the capabilities of our London based Jersey-law team.”

Under the present law, mortgages must be re-registered in the public registry every ten years, despite the majority of mortgages being for a term of 25 or 30 years.

The current system, which has long been seen as out-of-step with modern lending practices, has been amended with the result that a mortgage will only require re-registration after a period of 30 years.

This means that, with effect from 23 February 2018, the vast majority of new and existing mortgages will never need to be re-registered.

The change will be welcomed by borrowers who, at present, must pay all re-registration costs, including both the lender's and the borrower's legal fees.

The change in the law is also good news for lenders as the current system places a significant administrative burden on them.

Jane Needham of Bedell Cristin's Property team has welcomed the news.

"This change in the law is terrific news for both lenders and borrowers. Lenders will see a huge reduction in administration time and, perhaps more importantly, borrowers will no longer be faced with two sets of legal fees as well as Court fees, totalling hundreds of pounds."

We provide Jersey, Guernsey and BVI legal advice to meet the needs of real estate investors and funders; please email us if you would like to arrange a meeting, or alternatively, give us a call while in Cannes.

Closing is subject to relevant regulatory approvals being obtained, and is expected to take place during the first half of 2018. The Bedell Cristin team is being led by partner Tim Pearce, supported by senior associates Richard Le Liard and Guy Westmacott.

Jon and his colleagues will be talking about:

• Understanding the possible misuse of corporations and other legal entities to conceal the identify of beneficial owners;

• Identifying strategies used by trust and company administrators to accurately identify beneficial owners;

• Analysing risks posed to asset managers and fund administrators by complex structures in the identification of beneficial owners; and

• Learning about measures used by civil asset recovery experts to locate assets and identify their beneficial owners.

Please click here for full information. 

Tim Wright is taking part in a panel discussion at the conference, which includes expert speakers from several nations who will discuss today's most relevant cross-border cases and topics. Tim's panel session focuses on the strategies and pitfalls of stakeholder communications in cross-border cases, including communications between the debtors and their creditors, the creditor groups themselves, stakeholders and the applicable courts and communications between judges in various jurisdictions.

If you would like to meet up with Tim, Jamie and Tom while they are in New York this week, please get in touch.

What is "Without prejudice" rule?
The "Without prejudice" rule applies to exclude from evidence all negotiations genuinely aimed at settlement of a genuine dispute, whether oral or in writing. It stems in part from the public interest in promoting settlement of disputes although it is also in the interests of the parties themselves. The rule continues to protect "Without prejudice" communications from being disclosed to third parties even after the settlement of the litigation between the communicating parties.

Must you head letters "Without prejudice"?
Prior to the Court's decision in Sternberg the rule was applied whether or not the phrase "Without prejudice" was used. What mattered was that it was clear from the surrounding circumstances that the parties were seeking to compromise the action or settle the dispute. However, the rule could not be misused by writing "Without prejudice" on all correspondence. Using the term would not protect correspondence from being put forward in evidence unless that correspondence showed a genuine attempt to settle an active or "live" dispute.

Are there exceptions?
Our earlier piece, With or without prejudice covers exceptions to the rule, including the ability to reserve the right to present the correspondence in evidence on the subject of costs of the dispute.

What happened here?
The Court in Sternberg found that a judge or arbitrator could not take into account correspondence marked "Without prejudice", whether on the matters in issue or on the award of costs. However, it upheld an arbitrators ("Arbitrator") decision to amend his costs award having considered a letter from a firm of solicitors which contained an offer of settlement but which was not expressly marked "Without prejudice".

What was the costs award and how did it change?
The Arbitrator was asked to review his award of costs in a decision on a dispute over partnership rights. The Arbitrator's first costs award followed the event, and the "losing" party ("H") was to pay the "winners'" ("SRS") costs. H appealed the costs award and both parties agreed that the Arbitrator should revise his first award rather than face the expense of a formal appeal. H showed the Arbitrator a letter ("First Letter") which was not marked "Without prejudice" but which contained an offer from SRS to H. The First Letter was followed by correspondence on a possible settlement and those letters were marked "Without prejudice". On the basis of the First Letter, the Arbitrator concluded that neither party had done well out of the arbitration and so each side should bear their own costs. SRS appealed.

Should the Arbitrator have read the correspondence at all?
The Arbitrator considered various authorities and concluded that he had an overriding discretion to read all offers made, saying:
"I find it unappealing to disallow offers made on a without prejudice basis simply because they are not marked up 'save as to costs'."
The Court did not agree, referring to the England and Wales Court of Appeal decision in Reed Executive Plc v Reed Business Information Ltd [2004] EWCA Civ 887, [2004] 1 WLR 3026I which makes it absolutely clear that communications expressly made on a "Without prejudice" basis are inadmissible as evidence, even for the purpose of costs arguments; and also that the court has no general discretion to disapply the "Without prejudice" rule. Accordingly, the Arbitrator should not have read any of the correspondence that was specifically marked "Without prejudice".

Why was the First Letter accepted as evidence on costs?
The Court considered authority for the concept that a court can infer an intention that a communication containing an offer to settle a live dispute is covered by the "Without prejudice" rule even if that communication is not marked "Without prejudice". (Chocoladefabriken Lindt & Sprungli AG v The Nestlé Co Ltd [1978] RPC 287) Not to apply the "Without prejudice" rule in such a case would have meant disclosing evidence relevant to the issues in dispute. The Court distinguished that decision from the situation in Sternberg which related to evidence on the question of what order should be made for costs after the issues in dispute had been already decided. The Court held:
"Where there is an open offer to settle litigation which is not marked expressly 'without prejudice,' I have held that it can be referred to, not for the purpose of the substantive issues, but when the court comes to consider questions of costs thereafter or (in the context of an arbitration) when an arbitrator comes to do so. I have held that there is no public policy reason why such an offer should not be capable of being deployed on issues of costs; and I have found that there is no basis for implying or imputing to the parties an agreement that it should not be referred to on issues of costs, as distinct from the substantive issues in the underlying litigation."

Why did the judge refuse leave to appeal?
Even though this was an issue which had not been raised before, the Judge could see no real prospect of the Court of Appeal taking a different view, "given the emphasis that is placed upon attempts to settle litigation".

Protect and survive
The decision is a reminder that any communication, whether oral or in writing, which makes any open offer which genuinely tries to settle a live dispute should be clear that it is "Without prejudice" Correspondence should be headed "Without prejudice" and in any meetings or conversations it should be clearly stated and recorded that the discussions are "Without prejudice".

Is this new?
Information on the obligation of Companies and LLCs to keep information and how access to information on directors of Cayman Companies and managers of Cayman LLCs would work was set out as part of the package of changes in the Cayman Companies (Amendment) Law, 2019 ("Companies Amendment") and the Cayman Limited Liability Companies (Amendment) Law, 2019 ("LLC Amendment") (together "Amendment Laws") which were both passed on 8 August 2019. The provisions allowing access did not come into force until 1 October 2019 following Commencement Orders published on 19 September 2019.

What did the Amendment Laws change?
The Companies Amendment amended Section 55 of the Companies Law (2018 Revision) ("Companies Law") to create an obligation on the Cayman Islands Registrar of Companies ("Registrar") to maintain a register of all the directors and officers of Cayman companies. Section 55A requires the Registrar to make a list of the names of directors available for inspection by any person.

An amendment to section 56 requires companies to notify the Registrar of any changes in respect of the directors and officers within 30 days (as opposed to 60 days as previously provided in the Companies Law). This means companies have to notify the Registrar of:

• the first appointment of directors within 60 days; and,
• changes in the information contained in the register of directors and officers, within 30 days of the change.

The LLC Amendment added section 34A to the Limited Liability Companies Law (2018 Revision) ("LLC Law") which requires the Registrar to maintain a list of the names of the current managers of a LLC and to make those names available for inspection by any person, on payment of the prescribed inspection fee (CI$50) for each inspection and subject to such conditions as the Registrar might impose.

What are the penalties?
Penalties will apply where changes in directors or officers are not filed within the 30 day period. The Companies Law prescribes a CI$500 maximum penalty per company for a breach of that obligation, and an aggregate penalty of CI$2,500 where the same breach occurs in respect of five or more companies. The General Registry has published Directors and Officers Guidance Notes which it suggests should be used as instructions in the application and calculation of the penalties payable under section 56 the Companies Law.

Cayman's commitment to transparency
Introducing access to information on directors and managers on request, on attendance in person and payment of a fee and subject to the oversight of the General Registry allows Cayman to meet its commitment to international standards on transparency in a way which protects directors, officers and managers from frivolous applications for information.

This offence is committed where the movable estate situated in Jersey belonging to a deceased person is administered without having first obtained a Grant of Representation from the Royal Court of Jersey. Bedell Cristin reported the first ever case of this kind last year when the defendant bank was fined £25,000. In this second case, the defendant bank has been fined £20,000.

In both cases, the deceased was domiciled outside Jersey leaving cash in the relevant banks in Jersey. In the first case the incident was described as an accidental oversight by the bank employees who should have known better, however, in the second case the bank employee knew that a Jersey Grant of Representation was required on the death of a customer before any payments could be made from the deceased's account. However, the bank employee chose to continue to make payments to the bereaved partner of the deceased without a Grant of Representation. In both cases each bank self-referred the breaches of the Probate Law to the regulator, cooperated fully with the investigations and put in place additional policies to prevent future breaches.  

These cases illustrate the dangers of intermeddling with an estate and the seriousness with which the Royal Court treats such breaches.

Bedell Cristin is celebrating 80 years as a successful law firm.

The firm was founded in Jersey in 1939 by Advocate George Bedell who was known for being the island's first comptroller of income tax. In 1958 Advocate Dick Cristin joined as a partner, and the firm was renamed Bedell & Cristin. In later years offices were opened in Guernsey, London, the BVI, Singapore and the Cayman Islands, and the business has gone from strength to strength. 

A great deal has changed over the last 80 years, but our core values and focus on delivering the best possible client service have remained the same.

To find out more about our award-winning offshore legal services click here

Set against a backdrop of global political change, this year’s Jersey Finance Funds Conference will include an in-depth discussion of the major initiatives impacting the funds sector while also exploring the increasingly global outlook of funds professionals looking to future-proof their funds.

Entitled ‘Beyond Boundaries’, the September event, which has attracted nearly 600 delegates, will take a new format with break-out sessions covering key topics, from shifts in regulation and distribution, to the rising trends in the alternatives sector.  During one of the breakout technical sessions, the Evolution of Real Estate, panellists will examine what initiatives are creating caution and how these can be mitigated.

The conference will finish with broadcaster, Dan Snow, delivering the end note speech. 

To register for a place click here and please get in touch with Martin, Tom or Richard if you would like to arrange a meeting.

What is the new legislation?
The new obligations are contained in:

(i) the Trusts (Amendment) (No. 2) Law, 2019 ("Trust Amendment"), which amends the Trusts Law (2018 Revision) ("Trust Law") and
(ii) the Banks And Trust Companies (Amendment) Law, 2019 ("BTCL Amendment"), which amends the Banks and Trust Companies Law (2018 Revision).

Details of the recording obligations are set out in The Trusts (Transparency) Regulations, 2019 ("Trust Regulations") and the Private Trust Companies (Amendment) (no. 2) Regulations, 2019, ("Trust Company Regulations"), published on 16 August 2019.

What records will trustees need to keep?
The Trust Amendment requires trustees to maintain and keep up to date:

a) an accurate record of the identity and particulars of: (a) a settlor; (b) a contributor to the trust; (c) a beneficiary; (d) a protector; (e) an enforcer of the trust; (f) a service provider to the trust, including any investment adviser, manager, accountant or tax adviser; and (g) the person exercising ultimate effective control of the trust.

b) such accounting records relating to the trust as may be prescribed.

A significant change is the need to establish the identity and details of service providers such as a trust's investment adviser, manager, accountant, or tax adviser. The records and accounts must be kept in the format prescribed and for as long as prescribed by the Trust Regulations.

What do the Trust Regulations provide?
The Trust Regulations provide that for each trust, the trustee shall keep and maintain current copies of the trust deed or other documents containing or recording:

• The terms of the trust and any deed or other document varying the terms of the trust; and
• The name and address of: the trustee, the settlor; any contributor to the trust; any specifically named beneficiary; any identifiable class of beneficiary; any protector; and any enforcer of the trust.

Where it is not reasonably practicable for a trustee to identify each beneficiary in a class of beneficiaries, they must keep and maintain up-to-date information which sufficiently identifies and describes the class of persons who are beneficiaries. Where there has been a transfer between trusts, the definition "contributor" is the transferor trust and "beneficiary" is the transferee trust. The definition of beneficiary where there is a distribution to a minor or unincorporated charity is the person who gives the receipt for the distribution.

What are the rules on format and retention?
Trustees must take reasonable steps to ensure that they keep an adequate and accurate record of the information required which is: easily accessible; legible or easily rendered visible and legible; in English or translated into English; and updated in a timely manner. The information must be retained for a period of at least five years after the trustee ceases to be a trustee of the trust. If a competent authority makes a request in writing for any of the information, the trustee must take reasonable steps to ensure that an accurate and adequate record is provided within forty-eight hours.

Are there penalties?
A trustee who, without reasonable excuse, fails to comply with the Trust Regulations commits an offence and is liable on summary conviction to a fine of CI$5,000 (US$6,097).

What do the Trust Company Regulations provide?
There are amendments to the documents required to be kept at the registered office of a private trust company under the existing Private Trust Companies Regulations (2013 Revision) ("2013 Regulations"). These include the name and address of the settlor and of any protector and any enforcer. Two new definitions are added:

• "Enforcer" (a person who has standing to enforce a special trust); and
• "Protector" (a person appointed under a trust instrument to direct or restrain a trustee in relation to the trustee’s administration of the trust).

When and how does trustee status have to be disclosed?
Where, in their capacity as a trustee, a person or trust company forms a business relationship or enters into a one off transaction with a person conducting relevant financial business, they must take reasonable steps to inform that person that they act as trustee either before or at the time they enter into the relationship or transaction. Under the BTCL Amendment, trust companies also have to disclose that they are carrying on trust business. What constitutes relevant financial business is set out in Schedule 6 of the Proceeds of Crime Law (2019 Revision).

Does the Registrar of Trusts have to share information?
The Trust Amendment empowers Cayman regulatory and enforcement bodies and competent authorities to ask, in writing, that the Registrar of Trusts ("Registrar") provide them with information which they need to exercise their duties under the following legislation: the Anti-Corruption Law (2019 Revision); the Monetary Authority Law (2018 Revision); the Proceeds of Crime Law (2019 Revision); or the Tax Information Authority Law (2017 Revision) ("Laws"). The Registrar must share that information within 48 hours of the written request. The body with which it is shared may only use the information for the purpose for which it was shared or provided, keep it for as long as is necessary to do so, and it must not disclose that information for any other purpose without the Registrar's prior consent.

Who can ask for information from Trustees?
A competent authority can direct trustees or any other person exercising effective control of a trust in contravention of any of the Laws to provide such information on the trust and its activities. If a trustee fails to do so then they commit an offence and are liable on summary conviction of CI$50,000 (US$60,974) or, if the offence continues, CI$10,000 (US$12,195) per day or part of a day, up to a maximum of CI$50,000 (US$60,974).

Changes to CIMA powers
The new legislation makes the following changes to the powers of the Cayman Islands Monetary Authority (CIMA):

• The definition of when CIMA has authority to take action where a corporate service provider has breached relevant legislation has been extended to include Part 8 of the Limited Liability Partnership Law, 2017 ("Part 8");
• Part 8 has been added to the list of laws breach of which CIMA can ask for a search warrant;
• CIMA search warrants will be authorised by a magistrate rather than a Justice of the Peace; and
• CIMA may require a licensee holding a licence to carry on banking business or a Cayman banking group to make public disclosures as CIMA may specify.

• Entities that were previously 'Excluded Persons' under SIBL will now need to be registered by CIMA to conduct securities and investment business ('Registered Persons'), unless they are 'Non-registrable persons ’. Non-registrable persons are explained in a new Schedule 2A in the Law, which is a much more limited list of the type of entities and activities for which there is no requirement to register in order to conduct SIB.
• CIMA is given significantly enhanced powers of regulation and enforcement.
• Cayman limited liability companies and limited liability partnerships (types of entity that can now be created under relatively recent legislation) have been added to the categories of persons which could carry out SIB provided they are registered.

Who are current Excluded Persons?
Section 5(2) of SIBL (‘Requirement for a licence’) provides that persons specified in Schedule 4 of SIBL do not require a licence to conduct SIB. However if they choose, they may apply to be licensed under SIBL. Persons specified in Schedule 4 are 'Excluded Persons', but if paragraph 1, 4 or 5 of Schedule 4 applies to that Excluded Person then they have to register with CIMA, file an annual declaration and pay an annual fee (under s.5(4) of SIBL).

How has the Law changed this?
The Law makes no changes for licensed persons. However, the Law repeals SIBL's Schedule 4 in its entirety and replaces it with a new Schedule 4 (Persons required to be registered) (‘New Schedule 4’) and a new Schedule 4A (Connected Persons within a Single Family) as well as a new definition of 'Non-registrable persons' under Schedule 2A.

Who will now need to register and when?
All persons listed in the New Schedule 4 will need to be registered. Any entity currently registered with CIMA as an Excluded Person will need to take such steps as CIMA directs to register as a Registered Person by 15 January 2020. Applicants will be obliged to meet a number of requirements, including that their shareholders, directors and senior officers are fit and proper persons. Once registered there are requirements for annual returns, annual fees, updated information provision and CIMA approvals for issue and transfer of shares. They will also need to de-register with CIMA and file information if they stop carrying on SIB.

Who needs to be registered under the new Schedule 4?
The Law provides that the following are ‘Persons required to be registered under section 5(4)’

1. A company within a group of companies carrying on securities investment business
   exclusively for one or more companies within the same group.
2. A person carrying on securities investment business exclusively for one or more of the ollowing classes of persons —
   
   (a) a sophisticated person;
   (b) a high net worth person; or
   (c) a company, partnership or trust (whether or not regulated as a mutual fund) of which the shareholders, unit holders or limited partners are one or more persons falling within (a) or (b), and who has a registered office or a place of business in the Islands for which services are provided by a person licensed to provide such services.
   
   
3. A person to whom section 4(1) applies but who is regulated in respect of securities investment business by a recognised overseas regulatory authority in the country or territory (other than the Islands) in which the securities investment business is being conducted.

Are there business operations issues?
Under the Law, where a person carries on SIB for which a licence or registration is required, they must also maintain, among other things, such staff and premises in Cayman that CIMA considers appropriate, having regard to the nature and scale of the business.

What new powers has CIMA been given?
CIMA has been given discretionary powers in relation to an applicant for registration and exercise enforcement powers against a Registered Person; the power to direct a licensee or Registered Person to cease or refrain from performing specified acts; and to prohibit a Registered Person from acting as a depositary. CIMA’s enforcement powers are extended so it can act where it has reasonable grounds to believe that a licensee or a Registered Person is, among other things, unable to meet its obligations as they fall due, carrying on business fraudulently or has contravened any provision of SIBL. For example, CIMA can revoke a licence or cancel the registration, impose conditions on the licence or registration or apply to the court for an order to protect the interests of clients.

Further Information
For more information or advice on Cayman SIBL or AML regulations and legislation, please contact partners Jonathan Fitzgibbons or Susan Lock.

• there was a substantial variance in the quality of SARs filed;
• there was clear evidence that some reporters misunderstood their legal obligations under the Proceeds of Crime regime;
• around 15% of SARs did not meet the threshold of suspicion (i.e. there was no "possibility, which was more than fanciful"), and that would equate to approximately 4,121 SARs having been submitted unnecessarily between October 2015 and March 2017; 
• this corroborates the view that the threat of individual criminal liability for the relevant officials working in the reporting sector for a failure to make a disclosure encourages defensive  reporting;  and
• in addition to this, reporters only articulated reasonable objective grounds to suspect in 52.4% of the SARs analysed.

The Law Commission made a number of recommendations, including a fundamental one requiring additional guidance to be provided as to what exactly amounts to a suspicion. 

However, possibly the most interesting recommendation is the last, which deals with the suggestion of thematic reporting or "Geographical Targeting Orders".  These remove the reporter’s discretion to assess suspicion and instead require them to make reports if certain specified criteria are met (for example, an obligation to report may be triggered if a transaction occurs in or across a prescribed geographical location, or certain financial or other thresholds are met).  The Law Commission thought that thematic reporting might have a role to play in addressing problems of underreporting by certain sectors but recommended that a cost-benefit analysis should be done to ensure proportionality within the reporting regime, before any such changes were made.

The report provides independent, publicly-available analysis of the SAR regime in England and Wales and can be used by businesses to benchmark and indeed, to challenge their own behaviour. It is a really useful document and one which the Channel Islands would do well to emulate.

Indeed, although Jersey usually prides itself on being the vanguard of regulatory developments, the latest "quarterly report" published by the Joint Financial Crime Unit is for September 2016 (which noted that there were 2,317 SARs in 2015 and disclosures were slightly higher in 2016). Similarly in Guernsey, the latest information available is for 2015. Current figures and typologies for the last quarter in both jurisdictions would be a real benefit to industry.

Suspicious Activity Reporting is also a crucial focus for the international community (indeed, the Cayman regime came in for significant scrutiny in the recent FATF report. With a further evaluation of Jersey's AML regime by MONEYVAL in a couple of years, we clearly need to do better!

That is even more important given that resources are tight in both islands. If the trends identified in England by the Law Commission were to be repeated in the Channel Islands, many of the SARs filed will not be properly justified, institutions will have been reporting customers and clients inappropriately, and the authorities will have had to deal with a significant number of unnecessary reports. 

The event is titled 'the incredible rollover' and will discuss what Guernsey is doing to remain at the forefront of the development of ILS, including:

• confirming the availability of a 30-day ‘grace period’ for the application of collateral at rollover
• achieving true ‘convergence’ with joint insurance / investment vehicles
• working to be at the forefront of green and sustainable finance

It will be held at the Aura Event Hall in Zurich and is expected to attract over 100 professionals from across the world of insurance linked securities.

Please get in touch if you would like to meet up with either Richard or Mark.

Bedell Cristin is delighted to be the drinks sponsor at the event.

Please click here for more information and to register.

The Modified Universalism Route
“Modified Universalism” was described by Lord Sumption in the Privy Council case of Singularis Holdings Limited v. PricewaterhouseCoopers (“Singularis”) as follows:

“…the principle of modified universalism, namely that the court has a common law power to assist foreign winding up proceedings so far as it possibly can”.

The Cayman Court in Silk Road confirmed that the principles of modified universalism applicable to foreign winding up proceedings are not applicable to receivership proceedings. It zeroed in on these “distinct legal consequences” of winding up proceedings as described by Lord Sumption in Singularis:

1. The proceedings are “a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established”;

2. The proceedings provide “a procedural framework in which to determine what are the provable rights of creditors in cases where they are disputed”;

3. The proceedings bring into play “statutory powers to vary the rights of persons dealing with the company or its assets by impugning certain categories of transaction”; and

4. The proceedings bring into play “procedural powers, generally directed to enabling the liquidator to locate assets of the company or to ascertain its rights and liabilities”.

The Cayman Court considered that the absence of the four distinct legal consequences in receivership proceedings prevented the application of modified universalism to the proceedings in Silk Road.

The Common Law Route
The Cayman Court did, however, find that the Joint Receivers could gain recognition through the line of common law authorities emanating in England and Wales and applied in the Cayman Islands in Kilderkin.

For a foreign-appointed receiver to be recognized by the Cayman Court using this route, a “sufficient connection” must be established between 1) the entity over whose assets the receiver has been appointed and 2) the jurisdiction in which the receiver is appointed. In Schemmer and others vs Property Resources Ltd and others, Goulding J of the English Chancery Court suggested the following four tests to assess the existence of a “sufficient connection”, which were applied in Kilderkin and Silk Road:

1. Has the company in respect of whose assets the receiver and manager has been appointed, been made a defendant in the action in the foreign court?

2. Has the company in respect of whose assets the receiver and manager has been appointed, been incorporated in the country which appointed the receiver and manager?

3. Would the courts of the country of incorporation recognise a foreign appointed receiver?

4. Has the company carried on business in the jurisdiction of the appointment or is the seat of its central management and control located there?

Whilst in Silk Road the Cayman Court found that each of the four tests had been satisfied, it is the author’s view that, based on both case law and academic authorities, it is not imperative that all four tests be passed.

That said, satisfaction of the four tests (or a number of them) will not guarantee recognition. A Cayman court will not recognize a foreign-appointed receiver if to do so would be to give effect, either directly or indirectly to a penal, revenue or other public law of a foreign state. For example, in Stutts, the Cayman Court refused to recognize a receiver who had been appointed by a US court in proceedings brought by the SEC seeking disgorgement for breaches of the Securities Act 1933 and the Securities Exchange Act 1934. 

However, cases decided in common law jurisdictions since Stutts demonstrate, in the author’s view, a willingness of courts to distance themselves from narrow interpretations of the rule, particularly if the purpose of the receiver’s appointment is to return assets to defrauded persons.

Aptly titled ‘Monster Mondays’ the series will challenge the competitive grit of up to 50 corporate teams who will complete six laps of the track between them. “Monster Mondays will be an exciting challenge for runners,” said Distance.gg’s Michael Quittenden.  “We planned these races to be a celebration of team work while also encouraging a competitive spirit to win the title of the fastest firm in Guernsey.”

Kate Ovenden, managing partner of sponsor Bedell Cristin, said: “The undulating course, with its many twists and turns, will be testing for the competitors.  "We hope that this series of races will encourage firms to get out in the summer evenings and enjoy the Guernsey coastline."

Participants can sign up via Eventbrite with an entry fee of £50 for each team of three. There are  male, female and mixed categories.

The Monster Mondays series will take place on 10 June, 8 July, 12 August and 16 September at 6.30 pm. A prize-giving presentation will be held at the final event in September at the Imperial Hotel.

1. Planning - holiday accommodation must be registered with the States and must comply with a hefty number of conditions (extending even to the provision of cooking utensils in self-catering accommodation). AirBNBs generally avoid the need to register as they are primarily residential dwelling houses which are let "on occasion".
 
Maybe surprisingly in Jersey's tightly controlled residential licensing system, the current framework means that there are no licences or registrations required to sub-let a property to five or fewer people. Nevertheless, the owners of a property which has been used as a dwelling house in the past, but which is now objectively used as an AirBNB, could find themselves required to register with the States.

2. Tax – tax is a complicated topic and tax implications will very much depend on the individual's circumstances. Whilst pocketing an occasional fee may seem relatively innocuous, receipts from short term lets is likely to be classed as income and therefore subject to income tax, which will of course need to be accounted for.

3. Tenant's breach – the vast majority of residential leases in Jersey will prohibit the sub-letting or sharing of occupation of the property with any person not a party to the tenancy agreement. The tenant's legal obligation to abide by their lease operates independently from planning and taxation law. A tenant who breaches the provisions of the lease may find themselves in hot water with their landlord.

The rising cost of housing in Jersey has been well documented. For many islanders, a supplement to the cost of their mortgage or their rent is a tempting prospect. The ease with which one can list AirBNB availability is not however in keeping with the legal complications that could ensue.

Visit Jersey has ramped up its ambitions and, having seen a 3% increase in 2018 on the previous year, is now targeting one million visitors to the island by 2030. Those visitors (whether for business or leisure) will need to be housed and will expect flexible accommodation to suit.

It is likely that the Government of Jersey will move to regulate short term lets provided by AirBNB in the not too distant future but in the meantime, those listing their properties should be aware of the potential for legal complications that arise.

The case arises from the collapse of Yugoslavia in the 1990s. The National Bank of Yugoslavia (NBY) formed and funded a Jersey law trust as a vehicle for buying back its debts cheaply on the secondary market. After the disintegration of Yugoslavia, the NBY ceased to exist. But the trust assets remained. The trustee was left in a quandary and sought court directions in 1999 - for whom did it now hold the money?

It followed the “beneficiary route”, trying to identify under international law who inherited the debts and assets of the NBY on the basis that they could simply be substituted as beneficiaries, and then spent 15 years negotiating with those successor states their split of the money. But usually when all the beneficiaries cease to exist, the trust fund goes back to the settlor (the “settlor route”). So arguably the route chosen was the wrong one, albeit in this case the destination was the same (as NBY was both settlor and beneficiary), the international law analysis was still needed, and there were no wider repercussions for the trustee as it had been subject to court directions all along.

But a further problem arose - because the negotiations had taken so long, the agreed split took no account of the later division of Serbia and Montenegro, or Kosovo’s declaration of independence. So possibly the wrong countries were benefitting. 

As amicus curiae appointed to assist the Court, Advocate Drummond suggested a novel approach - an order that covered both the settlor and beneficiary route, and had effect like a “Benjamin order” in respect of Montenegro and Kosovo. Benjamin orders are used when a beneficiary is missing presumed dead - it allows the trustee to distribute on the footing he or she is dead, and so to bring the trust to an end. If he or she later appears, they can claim against those who received the distribution - not the trustee. In this case, the distribution was blessed without prejudice to the rights of Montenegro or Kosovo.

The judgment is also the first reported application of the principles set out in HSBC v Kwong [2018] JRC 051A regarding publication of trust judgments in full where anonymisation is not possible. Although contested by the trustee on behalf of the successor states, as this case involved public funds and no private individuals, it has been published in full.

Click here for a copy of the judgment.

The conference which is titled 'Restart' will explore the narrative for the future and how Guernsey can be the ideal location for investment funds in 2020 and beyond.

The key themes for the afternoon conference will be 'Green & Sustainable Finance' and 'Structuring Private Capital'.

The Keynote speaker is Sir Roger Gifford, Chairman – UK Green Finance Initiative and UK Head of SEB and the event will be moderated by Daisy McAndrew.

Following Guernsey's launch of the world's first regulated Green Fund product in July 2018, the first London-listed investment company has recently achieved Guernsey Green Fund accreditation.

The rationale of the Guernsey Green Fund rules is to provide a trusted and transparent platform to give investors confidence in green products to help funnel capital to the investments needed to meet the UN’s Intergovernmental Panel on Climate Change targets.

The Guernsey Funds Forum, now in its 10^th year, regularly attracts over 500 participants and provides excellent networking opportunities during the course of the afternoon. Please click here for further information.

Why should I make a Will?
One of the best reasons for leaving a Will is that it gives you a say in important decisions taken after your death:

• You get to propose who will act as your Executors (those who fulfil the instructions you have left in your Will) (subject to their agreeing to act).
• the Cayman Islands (‘Cayman’)  does not have legislation to restrict who can be named as a beneficiary under a will, or which insists that you provide for any dependents. This means that under your Will you are free to arrange the distribution of your assets among family members, friends, staff or charitable organisations. A specific gift can direct items of sentimental value to those who you consider will appreciate them the most. You can direct other assets to those you consider may need them the most, or you consider it is appropriate to benefit. Establishing trust funds can provide for the long term future of vulnerable family members, such as young children, relatives with long term illness or disability.
• You can leave instructions on the conduct of your funeral, and your burial or cremation. (You should advise your Executors of your intentions by a separate note, in case they do not see the Will straight away.)
• You can nominate guardians for your young children (under 18).
• You can arrange matters to deal with the situation where those who are to benefit under your Will (the ‘Beneficiaries’) die before you.

What happens if I die without a valid Will?
Like most jurisdictions, Cayman has a system to deal with a person’s assets after they have died without leaving a Will (dying ‘Intestate’). The Probate and Administration Rules ('Rules') set out what happens in this situation. There are categories of people related to a deceased who can apply for the Court to administer the estate, and the Rules set out how assets will be distributed among your surviving relatives. So Cayman legislation will decide what happens to your assets, according to a pre-determined list. You will not have any say in what happens at your funeral, to your remains, and who will look after your children.

I have a Will, so why change it?
Reasons to review a Will vary from simple changes of address to more complex changes that can come with a change in personal circumstances, such as a marriage. Here are some typical examples:

• Marriage or remarriage will automatically revoke any previously made Will, unless the Will was made in contemplation of the marriage. A new Will is needed or you will die Intestate.
• A divorce does not revoke any prior Will, and you may want to change your Will to reflect your new marital status.
• Marriage or re-marriage of a beneficiary may change the names of those beneficiaries, their financial situation or may bring step-children into the list of those you would want to benefit.
• On the purchase of a new home, there is a simple change of address in your identification on the face of the Will, and also of one of the major assets to be disposed of in your Will. With the purchase of additional homes or the acquisition of other substantial assets you may want to re-think how you want to distribute them among your beneficiaries.
• The birth of a child, a change in the financial, health or marriage status of one or more of your beneficiaries, their having more children, or their death, may mean it is appropriate to adjust the provisions you have made in your existing Will to include new family members, remove reference to those who have died, or to exclude a family member’s ex-partner, or a former staff member who had been due to benefit.
• Charitable donations may also need to be reviewed in case there are new charities which you would choose to benefit or existing charity beneficiaries merge, rebrand, change their focus or dissolve.
• Before a trust is established on your death it is possible to redraw the terms of the trust, such as the assets to be put into it and the category descriptions of who benefits.
• Over time family relationships often change as family members fall out or make up. Sometimes one of the reasons for a fall out is the feeling that someone has not benefitted sufficiently under a Will. If you have left a Will which seems like it may result in a lasting family dispute, then you may want to reconsider those provisions.

Why use a lawyer to draw up my Will?
There is no requirement that your Will has to be drawn up by a professional attorney, but for it to have any effect it will need to be valid under Cayman law. There are various formalities and rules which must be complied with, such as the Will must be signed, and witnessed by two independent witnesses who were both present at the time when the Will was signed. There are potential pitfalls, for example if the Will benefits a person who acts as a witness, then, while the Will remains valid, the benefit to the witness will fail. Other considerations also include:

• Where there are issues as to your capacity to make a Will, such as ill-health or duress, an experienced attorney will know what steps to take to reduce the risk of a successful challenge to the Will.
• If there are complex assets in your estate, shared property or assets which are located overseas, then an attorney can guide you on how to identify those assets clearly and accurately, and provide advice on how to act, or whether you need to consider a separate Will to deal with assets in another jurisdiction.
• If your Will proposes complex legacies, such as what should happen to an asset should the original beneficiary pre-decease you, or setting up trusts, then an experienced attorney will be able to guide you through the process.

What can go wrong?
Court disputes over a deceased’s estate can run for many years, with legal costs potentially taking a substantial portion of the assets which you have left. Family members can be set against each other, and rifts created that may never heal. Where provisions in a Will are not clear, for example in the correct identification of a family member or charity, then the family member or charity may simply lose out. As a charity will generally have an obligation to maximise its revenue, an inconsistency which could be interpreted in the charity's favour may mean it ends up disputing the Will with members of the family. There is a clear benefit to taking time to consider your Will, taking professional advice in its preparation and remembering that you may need to review it on a regular basis.

On being named, Nancy commented: "I'm delighted to have been named as one of Jersey's top 20 professionals. This recognition reflects the great team we have at Bedell Cristin and the exceptional service we provide to our clients." 

Reading the above figures, it is not surprising that there was a petition online to cap rental prices at 30 per cent of the tenant's income. This petition received over 5,200 signatures. Due to the high number of signatures received, politicians had to consider the issue for debate.

The Housing Minister, Senator Sam Mezec, stated that rent caps are one option. However, due to the limited success of rent caps in other jurisdictions he has proposed instead to repurpose empty properties and to restrict foreign investment.

Caution should be exercised in relation to governmental intervention in the private rental market as too much red tape can actually lead to a situation that is to the detriment of tenants. For example, when rent controls were introduced in parts of Scotland, rents increased markedly immediately before the controls were implemented.

The introduction of a limit in rental income might stop investors from entering the private landlord market. If investors are deterred from purchasing properties then there may be a reduction of stock available for tenants - so a cap could  have a negative impact on the supply of properties available. The quality of properties may also reduce as lower rents might leave landlords with less income to maintain their properties.

One of the main issues in Jersey is a shortage of affordable housing. This is a complex issue but it seems unlikely that it will be fixed completely by putting a cap on the rental market.

Below is a brief guide to some of the key points to consider in a commercial lease.

Do I have to continue to pay rent?
It depends on the extent of the damage.

Ideally, a commercial lease should provide that rent payments can be suspended if the premises are damaged or destroyed by an insured risk to such an extent that you (as the tenant) can no longer use them.

However, if the premises have been partially damaged but can still be used, a fair proportion of the rent should be suspended until the premises have been repaired.

Does the landlord need to rebuild the premises?
Usually, the landlord will be required to use the insurance money to rebuild the premises. However, this obligation may be qualified so that the landlord only has to rebuild if, for example:

• all planning permissions and consents have been granted; and
• the building insurance policy has not been cancelled as a result of your (the tenant's) actions.

If the landlord is unable to rebuild the premises within three years then either the landlord or you should have the right to terminate the lease.

Most insurance policies cover only three years' loss of rent so the landlord will need the right to terminate the lease before the insurance cover runs out.

The landlord may not be required to rebuild the premises to the exact specification from before the damage occurred, but they should be reasonably comparable to what was in place before the damage occurred.

What if there is a shortfall in the insurance monies?
From your perspective, the lease should ideally require the landlord to:

• insure the premises for their full reinstatement value; and
• make up any shortfall in the insurance pay-out from its own resources.

If the lease does not include such obligations then the specification of the rebuilt premises will be limited to what can be built with the insurance monies that are available. The risk here is that the landlord has under-insured the premises.

What if I caused the damage?
This is a very important and complex area of the law.

In short, you could be liable for the entire rebuild cost of the premises. If the premises form part of a larger building then you could be on the hook for the cost of rebuilding the entire building.

The extent to which you would be liable depends on what caused the damage.

For example, if you have carried out electrical work without using a properly-qualified electrician and the faulty electrics cause a fire then you could be in serious trouble.

The lease will often specify that all work to the premises must be carried out by proper tradespeople, to a high standard and then regularly tested.

If any of these elements are missing then the insurance cover for the premises may be withdrawn. If that happens then you would usually be liable for the entire cost of rebuilding the premises, or the building.

You would also be liable for any losses that have been suffered by the landlord as a result of the damage, for example professional fees of lawyers, architects, surveyors, planning consultants etc.

For that reason, all work carried out to the premises should be done by appropriate professional tradespeople.

What about my contents?
The landlord will usually insure the building, but you should have your own insurance policy to cover damage to contents.

Am I covered for loss of income?
You should speak to your insurance broker regarding business interruption insurance, which would cover losses from an interruption to your business.

Conclusion
Before entering into any lease, you should consider what would happen in the worst case scenario. The law is complex in this area, so we would advise you to seek legal advice at the earliest opportunity.

While we can't prevent damage occurring to your premises, we can help to put you in the best position possible if something does happen.

Donna Withers, ‘Leaping forward’, STEP Journal (Vol27 Iss3), p.47

What are the changes?
Among the changes it makes to the Non-Profit Organisations Law, 2017 (‘Law’), the Amendment identifies additional organisations which will be exempt, expands the functions of the Registrar (‘Registrar’) of Non-Profit Organisations (‘NPO’), and sets exemptions on the disclosure of confidential information. Importantly it adds a six-month deadline for registration of those NPOs which are not exempt at the time the Amendment comes into force.

What is an NPO?
The Law defines a NPO as including a company or body of persons, whether incorporated or unincorporated, or a trust which is:

(a) established or which identifies itself as established primarily for the promotion of charitable, philanthropic, religious, cultural, educational, social or fraternal purposes, or other activities or programmes for the public benefit or a section of the public in Cayman or elsewhere; and

(b) which solicits contributions from the public (or raises funds under the Amendment) or a section of the public in Cayman or elsewhere.

More information on the Law and registration may be found here.

Why are the changes necessary?
The Amendment aims to clarify which organisations are covered by the Law and which are exempt, as well as make procedural improvements designed to help Cayman meet its international commitments to Anti-Money Laundering (‘AML’) and to Counter the Financing of Terrorism (‘CFT’). The Law, the Amendment and Regulations are positive steps to register and monitor Cayman charities/NPOs and assess any potential risk that they may be used for international AML/CFT. (This was an issue raised by the Caribbean Financial Action Task Force (‘CFATF’) in its 2017 evaluation.)

What are the Exemptions?
The Amendment clarifies what the organisations which are exempted from the requirement to register are:

a) a NPO that is a designated nonfinancial business or profession registered under the Anti-Money Laundering Regulations (2018 Revision);

b) a NPO registered or holding a licence under any of the regulatory laws, other than an entity registered as an excluded person under section 5(4) of the Securities Investment Business Law (2015 Revision);

c) a NPO established as a trust company licensed or registered to carry on a trust business or a controlled subsidiary thereof registered under the Banks and Trust Companies Law (2018 Revision);

d) a government entity (defined as any body of Government and includes a ministry, portfolio, statutory authority, company, board, department or office);

e) an entity assigned by Cabinet with the responsibility of monitoring compliance with the relevant terrorism and anti-money laundering legislation; and

f) any other entity that Cabinet may, by order exempt.

How does the 6 month deadline work?
A NPO which was exempted from an obligation to register under the Law but which is not exempted once the Amendment comes into force will need to register within six months of 1 April 2019 if it wishes to keep soliciting contributions or raise funds from the public. During the registration process it will be allowed to carry on with its activities and not pay registration fees or penalties until it is registered. If, after application, the Registrar refuses to register the organisation as a NPO the organisation must stop raising funds from the public and referring to itself as a registered NPO.

What changes are there in the Regulations?
The Non-Profit Organisations (Registration Application) (Amendment) Regulations, 2019 also come into force on 1 April 2019, bringing administrative changes including a reduction in filing fees for Cayman NPOs. (There is more information on how to register your NPO, here.)

What was the nature of the trust?
The trustee (‘Trustee’) was a successful businessman who had moved to Canada from Europe. Early in his career he had established a trust to benefit his family. He created successful companies which he sold for Can$31m, what seemed to him and his wife at the time as unimagined wealth. On the sale of his first company he retained CAn$8m and the trust received Can$21m of the proceeds of the sale based on its shareholding in the company he had just sold.

How did the Trustee behave?
The Trustee saw the trust money as his own, and that it was all one pot of money which came from the sale of his company. The beneficiaries acknowledged the Trustee did not really understand that he was not a beneficiary of the trust and could not benefit himself from the trust.

Then what happened?
After the sale of the first company, the family’s way of spending money changed dramatically. They bought a luxury home in an exclusive area, a multi-million-dollar holiday home, boats and cars and the children were sent to exclusive private schools. The Trustee semi-retired but then set up another company which was also extremely successful. Along came a corporate jet, luxury vehicles and racing cars, which the Trustee drove in races under the company banner. His business acumen led to his also becoming a public speaker, author and television personality.

Who asked about the trust monies?
On the break- up of his marriage, the Trustee’s wife asked for an account of where the trust monies had been spent. The Trustee had no records so he employed an expert in forensics and accounting to do the job of reconstructing what had been spent.

What did the expert find?
He found there was a lot of work to do. Working 50-60% of his time on the task, the expert (plus two full-time staff and a co-op student working under the expert’s supervision) took three months to undertake the initial tracing of the trust funds. They reviewed ten years’ worth of bank statements for eleven bank accounts or investment accounts. The expert also needed to review 3,700 transactions in the shareholder account for the Trustee’s second company.

Had the Trustee done something wrong?
The OSC found that there was no question the Trustee had breached his fiduciary duties in comingling trust funds with both his own funds and those of the second successful company which he founded.
What is the Canadian courts approach to appropriate remedy?

Under Canadian law the court must consider a trustee’s breach in light of all the circumstances, such as whether it was a technical breach or a minor error of judgment. Another factor it considers is whether the trustee was paid and/or a professional. The burden falls to the trustee at fault to show he or she acted honestly, reasonably and ought fairly to be excused.

How did that work in this case?
In this case the Trustee’s breaches of fiduciary duty were more than technical and the OSC found it hard to quantify his errors in judgment as minor. It considered he had taken a cavalier attitude to the assets of the trust and had had no idea what his obligations were as a trustee. He did not conduct himself appropriately, keep proper records nor have the trust’s accounts routinely checked. On the other hand he was not a professional trustee and did not receive payment for his role. The OSC found that the breach was innocent and the only loss to the trust and the beneficiaries was the cost of the exercise of creating and reviewing the trust’s accounts.

What were the consequences and what was the remedy?
The OSC found that had the Trustee acted appropriately there would have been no need for an application to the court to consider the breaches of trust nor for the cost of reviewing the trust’s accounts. The OSC considered that the remedy was to order that the Trustee personally bear all the trust and beneficiaries’ costs of the application and the review of the accounts.

What did the Report think of Cayman?
Recognising the AML/CFT risks, threats and vulnerabilities faced by Cayman as a major international financial centre the Report found:

What is the Law about?

The list, often called a ‘blacklist’, is composed of countries that either failed to deliver on their commitments to comply with the European Union’s (‘EU’) required good governance criteria, or did not commit to do so at all. The Cayman Islands was not one of the countries added and was recognised as having taken many positive steps to comply with the EU listing process requirements.

With average lease terms of nine years in Jersey, many tenants believe that they are tied into their current lease for many years, with no option to relocate. However, that is rarely the case.

Does the lease include a break clause?
If you want to terminate your lease then the first point to check is whether the lease contains a break clause. Typically, a well-negotiated commercial lease for a term of nine years may have a right to break the lease at the end of year five. Other, more flexible break arrangements are also available.

However, if you did not request a break right from your landlord when heads of terms were being negotiated, it will be difficult for your lawyers to negotiate a break clause part way through the lease. For that reason, we would strongly advise you to seek the opinion of a property lawyer before signing heads of terms with a landlord.

If your lease does contain a break clause then there will be a number of procedural points to deal with in order for the break to be effective. For example:

• Notice must be served on the landlord (strictly in accordance with the lease requirements)
• Notice must usually be served in writing not less than six or 12 months before the break date
• All rent and service charges must be paid in advance up to the break date
• All sub-leases or licences to occupy must be terminated prior to the break date
• All tenant’s covenants must be complied with up to the break date

It is crucial for the tenant to understand that any condition to the exercise of a break right must be strictly adhered to. For example, if the lease states that the tenant must comply with all covenants and obligations up to the break date, then the break option could be invalidated by something minor such as the windows being dirty on the break date.

This is because the lease may contain an obligation on the tenant to clean the windows, and such break conditions are strictly interpreted by the courts. This may seem unfair, but having a well-negotiated lease will help to mitigate the risks for the tenant.

What if the lease does not include a break right?
All is not lost. A commercial lease will usually permit the tenant to assign (i.e. transfer) the lease to a third party who would like to take the premises (assignee). If the landlord has reasonable concerns about the financial strength of the assignee, he can either withhold consent to an assignment or seek some additional security from the assignee.

The most common forms of security are a third party guarantee or rent deposit. A rent deposit is a sum of money (usually either six or 12 months’ rent) which is held by the landlord and can be drawn upon in the event of a tenant breach, such as non-payment of rent.

Another option is to grant a sub-lease of premises to the third party who wants to occupy. This means that the original tenant remains responsible for the payment of rent to the landlord, but the new occupant (sub-tenant) pays rent to the tenant who then pays the rent to the landlord.

A sub-lease can be a useful solution where the landlord has concerns about the viability of the new occupant. The landlord is more likely to grant consent to a sub-lease because he knows that the original tenant remains “on the hook” even if the sub-tenant defaults.

From the tenant’s perspective, a sub-lease carries the risk that the sub-tenant will not pay the rent or will perhaps damage the premises, leaving the tenant exposed and unable to cover the costs. For that reason, an assignment would usually be preferable.

Can I give the keys back and walk away?
Not unless the landlord agrees to take the premises back.  However, there are circumstances where the landlord would accept a surrender of the premises, perhaps where the landlord wants to develop the property or believes that he could achieve a higher rent in the current market.

If the landlord would be willing to accept a surrender of the lease, then he would usually demand a surrender premium from the tenant as compensation for the loss of future rent / cost of dilapidations (repair) of the premises.

In return, the tenant should be released from all past and future liability under the lease.

Want to learn more?
At Bedell Cristin, we have a team of commercial lease experts who can advise you on every step of your leasing transaction, from negotiating heads of terms to dealing with break options, assignments, sub-leases and surrenders.

For a no-obligation discussion and fee estimate, please call our property experts.

The firm has provided Guernsey FC with tracksuits for community and off-island events, strengthening the team’s identity when representing the island.

“We are proud to support Guernsey FC and to become the team’s community and travel partner,” said Managing Partner for Bedell Cristin in Guernsey, Kate Ovenden.

“The club is an integral part of Guernsey culture and we look forward to supporting the Green Lions in their sporting and community endeavours.”

Guernsey FC director and communications manager, Nic Legg, added: “We’re grateful for Bedell Cristin’s support. We feel that the sponsorship is a great fit as both Bedell Cristin and Guernsey FC have a core belief of excellence through teamwork.

For the team to travel collectively with a unified kit provides an added sense of identity and pride as they represent not just the team, but the island as a whole.”

The event is titled 'Breakthroughs and Barriers: The International Finance Centre Perspective'. It will present case studies of what’s worked and hear experts unpick the barriers that still exist.

Jon will be moderating a discussion on the role of enforcement and related activities in IFCs, which will include:

• Understanding the role of the FIU and its efforts in international cooperation
• Learn about methods used in asset recovery and forfeiture proceedings through real life case studies
• Identify latest AFC typologies involving IFCs and strategies to ensure early detection and prevention of financial crimes

Please click here for further information and to book a place.

Data Privacy Day started in 2007 and commemorates the January 28, 1981, signing of Convention 108, the first legally binding international treaty dealing with privacy and data protection.

According to PwC research, only 25% of consumers believe most companies handle their personal data responsibly. As people become more aware of the loose handling of their data by social networks, tech giants and governments, implementing strong control over handling of personal information is becoming a powerful business advantage. In the near future companies will need to show their clients and customers that they can meet a good transparency standard by ensuring they can explain why they collect and share specific data, as well as prove that they have properly asked clients and customers for permission and notified them about data collection and processing as well as being clear about data holding and deletion policies and processes.

Today seems like a good day to highlight the fact that we as a firm see increasing demand for Data Privacy advice and increasing focus by the regulators on ensuring businesses are taking Data Privacy seriously and living and breathing a Data Privacy culture.

For any Data Privacy advice needs please contact:

Robert, a Jersey Advocate and qualified English and British Virgin Islands (BVI) Barrister, specialises in trusts, company, commercial and insolvency litigation. In his career, he has regularly been instructed in international litigation matters involving a range of the leading offshore jurisdictions, and he has advised on a broad selection of trust, company, commercial, fraud, asset tracing and insolvency cases.

A graduate from Oxford University, Robert was called to the English Bar in 2006, practising at Radcliffe Chambers in Lincoln’s Inn, London. Between 2012 and 2015 he worked for a major offshore law firm in the BVI before moving to Jersey where he joined, and subsequently became a partner of, Dickinson Gleeson.

Only last month he was named IFC Partner of the Year at the Citywealth Future Leaders Awards in recognition of the results achieved for his clients.

Welcoming Robert to the firm, Tim Pearce, Global Managing Partner at Bedell Cristin, commented:

‘Robert’s reputation in the marketplace is outstanding and his litigation experience in a broad range of specialist areas in London, the Caribbean and Jersey, together with his extensive courtroom experience, and his commitment to client care, will help further strengthen the capabilities and in-depth expertise of our top-ranked litigation team.’

The eprivateclient rankings highlight the importance of offshore law firms and the role they play in the global private wealth sector.

This year’s ranking is the first time that eprivateclient has separately recognised firms that operate across multiple jurisdictions and those that work from a single jurisdiction, with Bedell Cristin firmly ranked in the Top Tier of the multiple jurisdiction list.

Global managing partner Tim Pearce, who was earlier this year named as one of eprivateclient’s 50 most influential practitioners, said: “To be recognised by eprivateclient for the third year running is a great achievement and shows the calibre of client service and technical excellence we provide across our global offices.

“In the last few years we've placed particular focus on the development of our services to private clients with the appointment of Andrew Miller as Partner in our Cayman team and Kerrie Le Tissier to head up our International Private Client team in Guernsey. More recently we appointed Elizabeth Shaw as Senior Associate in our Jersey office – all of which has significantly bolstered our global offering.

“I’m proud of the dedication, hard work and relationships our teams have forged with private clients over the years which has led to them being recognised time and time again.”

The ranking acknowledges all practice areas in a firm that deal with private clients and for Bedell Cristin this includes its international private client offering, Litigation, Corporate & Commercial and Wills & Probate professionals.

The streamlined regime simplifies the existing processes of migrating to Guernsey and licensing a manager of overseas funds by combining the consent to migrate the manager to Guernsey and the licensing process within a 10 day review period. Alternatively, the regime provides for the licensing of a newly incorporated Guernsey entity also within a 10 day period.

This is a further expansion of existing fast track applications available in Guernsey including those for Private Investment Funds and Registered Funds. Click here for more information.

• To pay for the cost of Coronavirus, governments may increase borrowings and taxes. UK government may look to increase inheritance tax to remove Potentially Exempt Transfers, introduce up front taxes on legatees and abolish Business Property Relief. Across the globe, we may see the introduction of a wealth tax on capital assets. Saudi Arabia has already increased VAT to 15%.
• Increases in taxes in home jurisdictions might mean that more people look offshore. Offshore is still a good option for families with international assets or for those who wish to retain an element of control over their wealth.
• Different stages of lockdown has meant different client needs. Asia locked down early and activities have already started to pick up there. Clients in Europe and the Middle East, which were affected and locked down later, tend to still be reflecting on current structures and whether they achieve what they want.
• Coronavirus was a huge shock to the market but the recovery has been astonishing. Investment habits unlikely to change. We won't necessarily see a shift towards alternative markets but it is likely that ESG investing will continue.
• We are seeing more clients with structures in locations with less regulation looking to move those structures to jurisdictions such as the Channel Islands which have well regulated and robust systems in place. Looking ahead, offshore structures may face more scrutiny but the focus will be on those jurisdictions which don’t have the same level of regulation in place.
• Given the political situation in Hong Kong, more Hong Kong and Chinese clients will look offshore. So far, Singapore has been popular for Chinese private clients, although Channel Islands still has an important role to play, both for the establishment of offshore structures as well as to facilitate the establishment of Singapore law governed structures. Jersey law structures are becoming popular albeit often with trustees from Singapore or Hong Kong.
• Brexit is here to stay and a "No Deal Brexit" seems likely. But the world has changed because of Coronavirus. Globalisation has been very fragile over past 3 months and businesses have already had to adapt. The impact of "No Deal Brexit" might not be felt as much as initially thought.
• Unlikely that the markets fall as a result of a "No Deal Brexit".
• The global lockdown has changed people's habits and it is likely that we will travel less in the future. For the private client industry this means that we are likely to use a mix of online and face to face interactions in order to build relationship with clients.

To watch the whole webinar click here.

Alasdair Davidson, Edward Drummond and Laura Hatfield contributed to Global Insolvency’s Covid-19 update by reporting the changes implemented in Guernsey, Jersey and Singapore; including fiscal measures, health policy responses and other measures.

ABI is America’s largest association of bankruptcy professionals with over 13,000 members which serves as a comprehensive source of information on current issues surrounding international insolvency and restructuring law.

It is also the leading American provider of bankruptcy educational programs, produces numerous publications and testifies before Congress.

Bedell Cristin’s involvement with Global Insolvency showcases its commitment and experience in delivering expert client service in multiple jurisdictions across the world and demonstrates the firm’s credibility in the insolvency and restructuring legal space.

We were pleased to be invited to contribute and share updates from our jurisdictions with the ABI’s members.

To find out more about Global Insolvency’s Covid-19 update and to read the relevant jurisdictional reports please refer to the following links:

• https://globalinsolvency.com/covid19
• https://globalinsolvency.com/covid19/guernsey
• https://globalinsolvency.com/covid19/jersey
• https://globalinsolvency.com/covid19/singapore

If you need advice on any aspect of the law in relation to Covid-19 in your jurisdiction you can get in touch with our experts at the details below, or visit the people page of our website to find a contact who can help you.

• advance decisions to refuse treatment, also known as 'living wills', which allow a person (with capacity) to make a decision to refuse specified treatment when they no longer have capacity; and
• advanced care plans which allow a person to set out their wishes in relation to the care and treatment that they would wish to receive if and when they lack capacity,

and establishes the role of independent capacity representatives who will have the function of assisting persons who lack capacity and may challenge decisions taken on their behalf.

Timeframe
The Capacity Law will come into force on a date yet to be appointed by Ordinance of the States of Guernsey. It is expected that it will be brought into force in the not too distant future given that it has been a legislative priority for some time.

Bedell Cristin is preparing a more detailed briefing in respect of LPAs, including details of the process for creating and registering them, and the key issues to keep in mind when they are created. For more information in the meantime, or for assistance with preparing or registering LPAs once the legislation has come into force, please contact us.

Jeff O’Boyle, partner and head of property at the international law firm, said that the code is to encourage commercial landlords, in particular, to be flexible and to grant concessions, for example on rent, to tenants. The code is a positive move that reflects the current economic uncertainty caused by the coronavirus pandemic.

“Many businesses are facing significant disruption in the current climate and this voluntary code is designed to help business relationships to survive and, ultimately, to encourage positive and open dialogue between landlords and tenants,” said Mr O’Boyle.

The code does not release either party from their obligations under the terms of their lease but it does provide a framework to structure a temporary, voluntary agreement that enables both parties to survive the current crisis.

“The likely beneficiaries of the code are going to be tenants who are struggling to pay rent, but of course both parties may be suffering financial hardship so the code is a two-way street,” said Mr O’Boyle.

“The code specifically accounts for the inability to meet lease obligations, the type of voluntary arrangement that can be put in place to account for this – likely a deferral or waiver of rent payment – and a formalisation of that agreement.”

If a party cannot meet their obligations they are required to give the other party one week’s notice and then they must evidence their inability to perform their obligations. The two parties must then seek to agree either a partial or complete deferral of the obligations, a partial or complete waiver of the obligations or an early termination of the lease, returning the premises to the landlord.

A written agreement should then be prepared and signed by both parties. This prevents either party from commencing legal proceedings against the other throughout the agreed period of deferral or waiver.

Mr O’Boyle said: “The voluntary code is a welcome acknowledgement from the Government of Jersey that these are challenging times for many businesses and the spirit of the code dictates that parties need to deal with each other with transparency, flexibility and reasonableness.

“The Jersey community has pulled together at this time so, in most cases, this should be a mutually agreeable process. However, of course there will be concerns about abuse of the code and it doesn’t account for every circumstance imaginable.

“If any commercial tenant or landlord is uncertain of how they should approach a discussion with the intention of coming to a voluntary agreement they should seek legal advice.”

(“MF Regulations”) which were gazetted on 17 March 2020 and are now in effect. Two financial services industry consultations have been extended, but while there are new extensions of 30 days for some entity changes of information the IA reminds the industry that other Economic Substance (“ES”) obligations remain.

What are the new mutual fund regulations?
As part of Cayman’s ongoing commitment to modernisation of its funds regime it introduced new regulations to improve the data the Cayman Islands Monetary Authority (“CIMA”) collects from each regulated mutual fund. The changes respond to the Caribbean Financial Action Task Force (“CFATF”) review of Cayman’s anti-money laundering, countering the financing of terrorism, and countering proliferation financing regime (“AML Regime”). CFATF is the regional body which monitors Cayman’s compliance with international regulatory standards set by the Financial Action Task Force (“FATF”). As of 17 March 2020 the new MF Regulations are now in effect and may be found at the link above.

What are the Beneficial Ownership extensions of time?
The Cayman General Registry recognises that Covid-19 affects the ability of corporate service providers (“CSPs”) to retrieve information from their overseas clients and so it is giving a one-month extension for beneficial ownership information (“BOI”) submissions. These are temporary measures which go into effect as of Monday, 23 March 2020 and will cease on 20 April 2020. The General Registry expects that Cayman’s new BOI digital platform will soon be online and that CSPs will make the transition to filing electronically.

What’s new for Economic Substance regulations?
The IA points out that the Cayman Department for International Tax Cooperation (“DITC”) reiterates the importance of entities’ ES obligations. Where the travel restrictions due to the Covid-19 pandemic forces an entity has to conduct virtual board of director meetings, the IA advises that the DITC will take those restrictions into consideration on a case-by-case basis when determining whether an entity has passed or failed the ES test in its reporting (due in 2021). None of the changes will affect the reporting requirements due in 2020 for the 2019 year-end.

Extension: The Cayman Registrar of Companies is instituting temporary measures to assist with notification of entity changes under ES regulations. This includes changes to information on directors and officers, registered office changes and amended memorandum and articles of association (including increases in share capital). The IA advises that extensions to file for 30 days will come into effect for changes which occurred on or after 1 March 2020 and that filings will not incur penalties before 30 April 2020.

CIGA Obligations: The IA reminds relevant entities that whilst Covid-19 travel restrictions may affect the “directed and management” obligations (such as for board meetings), entities are still required to conduct core income generating activities (“CIGA”) in relation to their relevant activity.

What are the new deadlines for the Virtual Assets and Administrative Fines Consultations?
The Cayman consultation the development of a regulatory framework for Virtual Assets Service Providers will now conclude on Wednesday, 8 April 2020. The consultation on administrative fines, focussed on the proposed Monetary Authority (Administrative Fines) (Amendment) Regulations and looking at a range of effective, proportionate and dissuasive sanctions which aligns with FATF recommendations will now conclude on 6 April 2020.

Does this affect FATCA/CRS and ES reporting?
The DITC does not currently propose to make any changes to previously announced deadlines for Foreign Account Tax Compliance Act (“FATCA”) and Common Reporting Standard (“CRS”) reporting and ES reporting. If applicable international deadlines are modified then the DITC will advise of any changes at that time.

Please vote for us here. Voting closes on 15 April 2020. The event will be held in London on 13 May.

We appreciate your time, thank you for your vote and continued support.

The leading offshore law firm’s employment law team has recently advised one of the largest Channel Island businesses to assist with drawing up new and revised policies to account for the spread of the virus.

David Cadin, Jersey managing partner at Bedell Cristin, outlined that Channel Island businesses face some specific challenges.

“The close nature of the islands means that many businesses operate on a pan-island basis and even more have employees engaged in a wide range of roles – from back-office to public-facing staff,” said Mr Cadin. “This sheer variety means that employment policies need to be broad-ranging and ensure that all employees, and the employer, are suitably protected and accounted for.”

The ever-evolving threat posed by Coronavirus is impacting the business environment and has caused many companies to explore options such as allowing staff to work from home, splitting teams across multiple sites and limiting contact with the public.

“Each business is different and each is facing its own challenges and demands as a result of the virus,” advised Mr Cadin. “We have worked collaboratively and quickly with local HR departments to identify their circumstances and help them put the right policies in place to allow them to continue to function and protect their employees.”

Although the current Coronavirus outbreak presents a real threat, measures must be adopted simultaneously to ensure business continuity and virus containment within the workforce.

Bedell Cristin has produced a briefing document to give employers and employees and overview of what they can do to mitigate against the risks.

What happened?
A company (“Foxpace”) wanted to sell a house (“Nash House”) in England. It entered into an oral agreement with Mr Barton to pay him £1.2m if he introduced a purchaser who then bought Nash House for £6.5m. There was no provision for any payment to Mr Barton if the house sold for less. Mr Barton found a purchaser (“Western”) who ultimately purchased Nash House for £6m. Mr Barton claimed he was owed £1.2m. Foxpace refused to pay, offering Mr Barton £400,000 as “a goodwill gesture”, which he refused.

What did the High Court decide?
The High Court found Mr Barton had entered into the contract freely. If there were no terms for him to be paid other than a sale for £6.5m, that was his risk and it was not up to the court to interfere. Mr Barton was not entitled to be paid anything.

Did it accept the unjust enrichment claim?
As an alternative argument, Mr Barton had claimed compensation for unjust enrichment. This was on the basis that Foxpace had accepted a benefit in the form of an introduction to Western. Foxpace knew the introduction would not have happened without Mr Barton, that he expected to be paid and it had not rejected that introduction. In dismissing the unjust enrichment claim, the judge concluded that whilst Foxpace was clearly enriched, Mr Barton was barred from making a restitutionary claim pursuant to the decision in Macdonald Dickens & Macklin (a firm) v Costello2, which held that a claim for unjust enrichment should not be used to undermine the terms of a freely agreed contract.

In applying the principle from Costello, the High Court found that if a contract allocates a risk to one party the court should not allow a claim for unjust enrichment to undermine the parties' agreement by reallocating the risk. Mr Barton’s contact with Foxpace could have provided for him to be paid if Nash House sold for less than £6.5m, but it did not. It reasoned that was not up to the courts to add terms which would make Foxpace pay Mr Barton in circumstances which were different to those which the parties had agreed.

What was the EWCA's assessment?
The EWCA considered Mr Barton’s claim for unjust enrichment was not trying to undermine his contractual arrangements and should be allowed. The parties could have agreed express terms in the contract terms that Mr Barton would only be paid "if, and only if" he met certain conditions, but they did not, they simply did not consider what would happen in the event of a sale for less than £6.5m. The EWCA concluded that Mr Barton’s service was rendered in circumstances in which the agreed fee did not apply, but the parties did not expressly provide, or expect, that he would go unpaid. His claim for unjust enrichment was therefore allowed.

How much was the agent paid?
Mr Barton was to recover the amount Foxpace had been unjustly enriched calculated by an objective market value approach. The £1.2m in the contract was determined by other factors and not intended to reflect the value of Mr Barton's services. The EWCA valued Mr Barton’s services by reference to other agreements for introduction fees that Foxpace had agreed. The midpoint of those fees was 7.25% of the sale price, so the EWCA awarded Mr Barton £435,000.

What should we take away from the EWCA's decision?
Property transactions are often one of the higher value contracts that individuals and businesses enter into, so making sure they clearly reflect the parties' intentions is essential. It is important that all eventualities are considered and expressed, particularly in bespoke contracts. If there is no specific contract term covering a situation that has arisen, this case illustrates the relatively wide powers of the court to discern the intention of the parties.

Seeking legal advice at an early stage of contract preparation can help avoid uncertainty and costly disputes. Bedell Cristin has a wealth of experience in advising clients on property contracts within the Cayman Islands. If you are drafting a contract, need advice on interpreting a contract or require representation in disputing an existing contract, please contact us to see how we can assist.

CITATIONS
1 [2019] EWCA Civ 1999
2 [2012] QB 244

The list is a definitive ranking of key players in the UK and its Crown Dependencies’ private client practitioner sector. The list is based on a selection process that evaluates industry knowledge, achievements, promotions and progress made in the past 12 months. As part of the wider strategy for the firm, Tim has expanded the private client practice within Bedell Cristin through the appointment of Andrew Miller and Kerrie le Tissier, both partners in Cayman and Guernsey respectively and Craig Paynter in Singapore, who further strengthen the firm's global private client expertise. They will augment an existing team whose members were shortlisted for a number of industry awards in 2019. Additionally Nancy Chien, a Jersey-based private client partner, was nominated for a leading private client award.

Tim said "I am delighted to be included in this list of influential practitioners which recognises the high quality of our team and our continued focus on enhancing client experience in all our jurisdictions".

In certain jurisdictions, courts have the power to set aside these payments where they are voidable under legislation. The courts can also make orders to put the company back in the position it would have been in had the payments not been made. The issues raised in these cases include when legislation can be used outside of its own jurisdiction and what elements make up an “intention to prefer.”

Each of the three Privy Council decisions concerns a different jurisdiction with different legislation:

The first, “AWH Fund,” was an appeal from the Court of Appeal of the Commonwealth of the Bahamas (“Bahamas”). In that case, the defendant sought to overturn the decision to allow service out of the jurisdiction in proceedings by a liquidator who attempted to set aside alleged preference payments.1

The second, “Fairfield Sentry,” was an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court of the British Virgin Islands (“ECCA”). This case concerned an attempt to stop BVI liquidators from bringing statutory avoidance claims under BVI legislation in the U.S. Bankruptcy Court for the Southern District of New York.2

The third, “SEB,” where my firm acted for the appellants, was an appeal from the Court of Appeal of the Cayman Islands (“CICA”). It raised issues about whether payments made were unlawful preferences.3

The AWH Decision
The AWH decision involved whether the liquidator for AWH Funds Ltd. could serve proceedings out of the jurisdiction of the Bahamas by asking the court for an order that payments from AWH to ZCM Asset Holdings (“ZCM”), a Bermuda-incorporated company, could be declared void as undue or fraudulent preference payments under section 160 of the International Business Companies Act 2000 (“IBCA”) of The Bahamas. The Liquidator wanted ZCM to repay the money.

Section 160 provides that a transaction is void if it is made within three months of a person becoming insolvent with intent to prefer that creditor. The Liquidator brought proceedings against ZCM in the Bahamas by way of a summons issued within the liquidation proceedings. ZCM appealed against service of those proceedings in Bermuda on the grounds of lack of jurisdiction and lack of a good arguable case on the merits.

The first issue was whether the summons could be served outside the jurisdiction. Having examined the various rules and considered United Kingdom legislation and precedent, the Privy Council said it did not need to identify a “jurisdictional gateway” for the Liquidator to bring a claim that the payment to ZCM was fraudulent. The Privy Council, however, did accept that the Liquidator needed to establish some connection between the foreign respondent, ZCM in Bermuda, and the jurisdiction of the Courts of the Bahamas.

Even without specific reference to legislation or rules to allow a claim to be brought against a company out of the jurisdiction, the Privy Council found that where an international business company is in liquidation in the Bahamas, it is proper in appropriate cases for the Bahamian courts to rely on other sources of jurisdiction to entertain proceedings to enforce a claim vested in the liquidator. The Privy Council said it is desirable that such claims should be heard by the Bahamian courts in the interests of ensuring that the purposes of the winding up of the company are fully achieved.

The Fairfield Sentry Decision
The Fairfield Sentry appeal to the Privy Council came from the Court of Appeal of the Eastern Caribbean Supreme Court, which upheld a lower court decision not to grant an anti-suit injunction that would have restrained Fairfield Sentry Ltd.’s liquidators from pursuing proceedings in the United States under section 249 of the British Virgin Islands Insolvency Act 2003 (“BVI Insolvency Act”). The Privy Council found that BVI insolvency legislation could be applied by a court outside BVI if the foreign court decided that was appropriate. The Privy Council also found that the U.S. proceedings were not unjust, vexatious or oppressive and that an anti-suit injunction to stop them was neither appropriate nor necessary.

Under section 249, the BVI High Court has the power to set aside voidable transactions, such as a preference payment or a transaction at an undervalue (i.e., less than fair market). The section also confers powers on the court to make orders to restore the company in liquidation to the position it would have been in had it not entered into the transactions.

The background to the decision was that in December 2008, the BVI High Court made orders to wind up three BVI-based feeder funds that invested in Bernie L. Madoff Investment Securities (“BLMIS”). One of those funds was Fairfield Sentry. As in other Madoff proceedings, one of the issues raised by the Liquidators was that the Net Asset Value (“NAV”) of redeemable shares in BLMIS holdings were set using fraudulent reports created by BLMIS. Fairfield Sentry’s administrator used the false BLMIS reports to set the value of redemption payments made by Fairfield Sentry when investors who held shares redeemed them. As a result, hundreds of investors redeemed their shares at values based on BLMIS’s fraudulent reports and thus received payments based on a valuation that was fraudulent as a result of external fraud (by BLMIS), rather than fraud which originated within Fairfield Sentry. Those redemption payments are what the Liquidators of Fairfield Sentry were looking to recover.

The U.S. Bankruptcy Court allowed the Liquidator’s statutory avoidance claims under section 249 to proceed. But the potential defendant (“UBS”) applied to the BVI High Court for an anti-suit injunction to stop the Liquidators from proceeding with their claims in the United States. The BVI High Court and the Eastern Caribbean Court of Appeal (“ECCA”) refused to grant the anti-suit injunction, and UBS appealed to the Privy Council.

UBS argued that the section 249 power could not be delegated to a foreign court. To allow such a delegation would be oppressive to the interests of alleged debtors of an insolvent BVI company. UBS suggested that as an alternative to an anti-suit injunction, the Privy Council could declare that only the court charged with supervising Fairfield’s winding up (i.e., the BVI High Court) had the right to exercise the power under section 249.

The Liquidators argued that the U.S. Bankruptcy Court should decide whether to apply BVI insolvency law in dealing with their applications. The Liquidators added that it was not unusual for courts to assist foreign liquidation proceedings by applying the law of those foreign proceedings, including applying a statutory power to adjust or reverse voidable transactions. The Privy Council said that section 249 did not confer an exclusive jurisdiction on the BVI High Court. There was no express prohibition on a foreign court from exercising the powers in section 249 at the request of a BVI liquidator or other office holder, and the Privy Council said it was not necessary to imply such a prohibition. It agreed with the Liquidators that it is not uncommon for the courts in one country to apply the insolvency laws of another when giving assistance to foreign liquidators or other officers.

The SEB decision
In the case of SEB, the Privy Council considered whether redemption payments made by an insolvent company (“Weavering”) were preferences over other creditors of the company under section 145(1) of the Companies Law (2016 Revision) (“Law”) in the Cayman Islands.

The payments had been made to Skandinaviska Enskilda Banken (“SEB”), as a bare nominee, which had passed on payments from Weavering to its principals. It was then discovered that the redemption payments had been based on an incorrectly-set NAV which had been the result of an internal fraud. This differed from the situation in the previous decision of the Privy Council in Fairfield Sentry, where the fraud which gave rise to the incorrect NAV was carried out by others external to the company.

Weavering was an open-ended investment company, established as an exempted company with limited liability under Cayman law. SEB bank held redeemable “Participating Shares” in Weavering as a nominee on behalf of two mutual funds. SEB received payment under two redemption notices. Then, in March 2009, Weavering entered liquidation. The Liquidators appointed to Weavering argued that the redemption payments to SEB were Preference Payments and as such invalid under section 145(1) of the Law. The Liquidators applied to the Cayman Grand Court for an order that SEB repay them. The Grand Court found the redemption payments were invalid as Preference Payments and therefore ordered SEB to repay the Liquidators with interest and costs.

SEB’s appeal to the Court of Appeal for the Cayman Islands (“CICA”) was dismissed, and SEB then appealed to the Privy Council. SEB raised a number of issues, including whether Weavering’s payments to SEB were Preference Payments when there were no other creditors over which it was preferred. This argument followed the line that because the NAV published by Weavering was set incorrectly (as a result of fraud from within Weavering), the NAV was not binding. None of the redemptions had taken place in accordance with Weavering’s Articles of Association, SEB argued, and therefore no redeemers had ever become creditors of Weaving within the meaning of section 145(1). If there were no creditors, then no payment could prefer one creditor over the other.

The Privy Council, however, decided that the payments SEB received were indeed Preference Payments. Section 145(1) of the law renders invalid any transactions, made at a time the company could not pay its debts, and which were made in favour of a creditor “with a view” to giving such a creditor a preference over other creditors. SEB had cited the observations of Lord Justice Greene In re M Kushler Ltd. [1943]4 that an inference of an intention to prefer needed to have at least “a taint of dishonesty.” SEB argued that although at the time the payments were made, Weavering knew that later redeemers would not be paid, the payments to SEB were not made “with a view” to giving a preference. Furthermore, Weavering’s payment policy applied equally to all the shareholders who redeemed in December 2008. SEB argued that mere knowledge that the other redeemers would not be paid was not enough to demonstrate an intention to prefer SEB. But the Privy Council disagreed. It found that whilst there was a valid payment policy in place at Weavering for the December redeemers, that policy was not evenly applied, with the result that some redeemers were preferred.

As in the AWH Fund case, the Privy Council said it was potentially open to SEB to recover the monies from those to whom it had passed them. In SEB’s circumstances, however, that was not possible because the underlying mutual funds no longer existed in their original form. The Privy Council recognised that this situation gave rise to a “harsh result.” It observed that legislation in other jurisdictions had mitigated against this type of result. Without that legislation, it means a harsh result for all nominee shareholders in Cayman companies, who will now be vulnerable to preference claims. They should take advice on ways to protect their position to avoid a similar result.

Conclusion
All three cases show that the Privy Council generally supports the proposition (and the public policy) that a domestic court may in certain circumstances delegate powers to a foreign court by allowing liquidators/receivers to effect an extraterritorial reach as they seek to recover money for investors.

Author - Kai McGriele, Partner Bedell Cristin, Cayman Islands. This article first appeared in The Receiver newsletter, December 2019, issue 9. Published by the National Association of Federal Equity Receivers.

ENDNOTES
1 AWH Fund Ltd (In Compulsory Liquidation) (Respondent) v ZCM Asset Holding Company (Bermuda) Ltd (Appellant) (Bahamas) [2019] UKPC 37Privy Council Appeal No 0033 of 2018.

2 UBS AG New York and others (Appellants) v Fairfield Sentry Ltd (In Liquidation) and others (Respondents) (British Virgin Islands) [2019] UKPC 20 Privy Council Appeal No 0082 of 2018.

3 Skandinaviska Enskilda Banken AB (Publ) (Appellant) v Conway and another (as Joint Official Liquidators of Weavering Macro Fixed Income Fund Ltd) (Respondents) (Cayman Islands) [2019] UKPC 36.

4 In re M Kushler Ltd [1943] Ch 248, CA.

At a recent seminar series hosted by Bedell Cristin and Focus HR in both Guernsey and Jersey, employers were reminded that all employees are data subjects and that with a progressively more data aware workforce, it is increasingly common for the "weapon" of a subject access request to be brandished by an employee against their employer (or more commonly their former employer) when their employment relationship turns sour, and that the best defence to that weapon is preparation.

Known officially as Data Subject Access Requests (DSARs), they enable employees to, amongst other things, obtain a copy of all personal information processed by their employer. They generally arise when an employee is contemplating or is already in dispute with their employer or former employer.

Under both the Data Protection (Jersey) Law, 2018 and the Data Protection (Bailiwick Guernsey) Law, 2017, employees have the right to obtain certain information from their employers, including details of what personal information is being processed, the purposes of that processing, to whom that information has been disclosed and for what purposes, where the data is kept and for how long it will be retained. They also have a right of access to a copy of their personal data. It is this final "right" that understandably creates the "fear factor" for employers. The fear stems not so much from what data is actually processed by an employer (or the "smoking gun" that the disgruntled employee hopes to find), but merely from the sheer volume of personal data that employers will naturally process about their employees and the time and resources that are required to sift through that data, identify what is personal data, determine whether it needs or should be disclosed and ascertain the format of that disclosure. Carly Parrott, Counsel at Bedell Cristin emphasised that the statutory right of access was to "data and not documentation" and that whilst, technically, the law permitted "fishing expeditions", employers need not grant an unrestricted fishing licence and should focus on the personal data itself, not the documentation in which that data is found.

Highlighting the fact that there has been an exponential increase in the number of DSARs since the introduction of GDPR (and the corresponding local data protection laws), Carly Parrott referred to statistics that over 70% of EU employers had received DSARs from their employees, and that the trend in the Channel Islands was invariably for a DSAR to either precede or immediately follow a letter before action or submitted claim form.

Data protection by design and default is key to the preparation process, although it was recognised that this may not always be practicable for local employers. Employers were talked through carrying out, at a minimum, the data mapping and data audit processes, and encouraged to think about where personal data is stored on their systems. Personal data is everywhere, it's in personnel files, e-mails, file notes, hard copy records, data kept as back up, in the archives or in cloud-based storage. Employers were warned that personal data could also be stored in social media platforms and instant messaging tools and unless suitable policies and procedures were in place to ensure a delineation with personal devices, an employer could find itself being deemed a controller in respect of such data and required to search and disclose relevant personal data contained on other employee's personal devices and messaging platforms.

Understanding where your data is stored and what data is processed is a key first step. Carly Parrott presented a checklist for employers to work through to assist in both preparing for a DSAR, and also to support an employer in responding to a DSAR.

Delegates were advised to make sure that contracts and policies were updated to account for DSARs, that precedent response documents were prepared, thought given to the creation of a response "war room" and that a dry run response to a DSAR be undertaken to identify any gaps in the retrieval and response process. Edward Drummond, Partner, highlighted the importance of ensuring that staff were trained on written communication (and what not to put into writing), that employers have appropriate retention policies in place, and more importantly that they rigorously applied them. The message was clear – if you don't need the data, delete it. This is a fundamental tenet of the data protection laws and one that ironically assists an employer when having to respond to a DSAR.

In terms of actually responding to a DSAR, discussion was had around the short time limit for responding (4 weeks in Jersey and 1 month in Guernsey) and the circumstances in which that time limit can be extended. The importance of "scoping" a request was canvassed as a means to ensure that the legitimate intentions of the data subject can be prioritised in the review. Delegates were provided with tools and checklists to adopt when responding to DSARs.  

Richard Le Laird explored the exceptions and exemptions within the data protection laws, discussing the concept of proportionality, introducing the concept of "manifestly vexatious unfounded or excessive" and explored the various exemptions to disclosure under the laws. Critically, he highlighted the tricky balancing act that employers must undertake in relation to the rights of the data subject to copies of their data against the rights of third parties to the privacy of their data.

John Ioannou-Droushiotis of Focus HR discussed the HR implications of DSARs, emphasising DSARs have the tendency to intertwine with other HR processes and employers must ensure that the procedures are managed separately so as not to derail due process being followed. John noted that employees should also be trained to draft meeting notes in an objective manner, focusing on the facts, and to document any deviation of standard HR procedures supported by the justification behind doing so.

Carly Parrott added: ‘Data subject access requests often prove to be one of the most challenging areas of the data protection law for employers to manage. Sifting through vast amounts of information (including e-mails) to find personal data specific to an employee can be daunting and the reality is that responding to a DSAR is time consuming. But it doesn’t have to be a process to be feared.’

Helen Myers, Head of Jersey, Focus HR said, “We are excited to be providing training in this technical and complex legal area for the HR community and employers. Data Subject Access Requests are notoriously time consuming and costly to employers. There are many pitfalls associated with DSARs which employers need to be aware of including accessing and providing the right data – the provision of personal data and not the provision of the documentation, and the type and level of information that is captured by the request. We aim for this seminar to assist HR professionals and employers to navigate the process while learning about the risk exposures to be mindful of”.

For more details about DSARs and the practicalities of dealing with them, please contact Carly Parrott, Edward Drummond or your usual Bedell Cristin contact.

The virtual event (delivered through Online Classroom Live) which takes place on Thursday 17 June 2021 at 8.45am (GMT) will cover a range of topical areas, how Covid-19 has affected family offices as well as assessing the key Brexit considerations for family offices. In response to geopolitical issues and the rising importance of climate change, the panel will look at the rising popularity of alternative investment structures for family offices.

Robert Christie will be discussing managing challenges and conflicts with trustees, beneficiaries, heirs & spouse, including;

• How successful trusts (and other structures) can quickly become problematic, especially in a matrimonial context
• How to walk the tightrope between maintaining a good relationship with the settlor and beneficiaries, and maintaining your independence
• Identifying the moment when it is time to make a tough decision

Click here to find out more and register for the 2021 Family Office & Private Wealth Management forum.

Background

Unlike England & Wales, a tenant of commercial premises in Jersey does not automatically benefit from a right to renew their lease at the end of the term. However, a tenant who stays in the premises after their lease has expired (where the landlord continues to accept rent) may become a "tacit tenant" because their lease has "tacitly renewed".

A tacit renewal is implied from the actions of the parties to the lease. An implied intention does not override an express intention. However, where a landlord permits a tenant to remain in premises after the end of the term and accepts rent, there is a strong case that the landlord is happy to tacitly renew the expired lease.

A tacit renewal means that the old lease is deemed to have been renewed on broadly the same terms as the old lease. There are a couple of exceptions:

• Term: the term of the tacit lease will be a periodic tenancy rather than a fixed term (unlike the expired lease); and
• Guarantees: any guarantees given under the expired lease will not survive the renewal. 

Licensees (as opposed to tenants) who stay in premises following the termination of the licence are not entitled to a tacit renewal.

Possible implications

The implications for landlords and tenants are very different in the event that a lease is tacitly renewed.

A landlord is likely to want to formally regularise the tenant's occupation of the demised premises in order that they can manage their income streams and maintain an institutionally acceptable asset.  Other possible landlord concerns include:

• allowing a tacit renewal to take place may be a breach of the landlord's mortgage terms;
• the removal of the guarantor raises concerns as to whether the tenant will be able to meet the obligations under the lease; and
• the landlord may find that they have lost part of their bargaining power in negotiations with the tenant.

By contrast, a tenant is maybe more likely to benefit from a tacit renewal as:

• the guarantor is no longer responsible for the liabilities of the tenant; and
• they are able to remain in the demised premises to carry on their business without having to immediately negotiate a new lease (the terms of which may not be as favourable as the expired lease, depending on the bargaining power of the landlord and the tenant).

Equally, a tenant may find that they are unexpectedly bound into a lease. They will remain liable for the rent and the performance of all other covenants until the renewed lease has been terminated. This may adversely affect the tenant's relocation plans or ongoing business model.

Terminating a tacit renewal

As the renewed lease is a periodic tenancy, it is brought to an end by notice. Either party may serve notice on the other side to terminate the tacit lease.

The length of the notice period required to terminate a tacit tenancy is governed by the Loi (1919) sur la location de biens-fonds. The 1919 Law is complicated and antiquated but lays out the way in which notice periods to terminate periodic tenancies are calculated. They are based on the nature and size of the property, the rent and the frequency with which rent is paid.

In some cases, the notice periods may be lengthy; up to a period of at least two years expiring at Christmas.

Preventing a tacit renewal

The most obvious way in which a tenant can prevent a tacit renewal is by vacating the premises at the expiry of the lease. It should be noted that a tenant who remains in occupation (but where tacit renewal does not take place) is likely to be a trespasser. 

Generally, the landlord will have the higher vested interest in preventing the tacit renewal of a lease, preferring instead to either formally renew a lease or recover possession of the premises.

A landlord may generally demonstrate their intention not to tacitly renew the lease by:

• refusing to accept rent after the old lease term has expired;
• writing to the tenant to expressly state that they do not wish to tacitly renew the lease; and/or
• promptly commencing proceedings to evict the tenant following the old lease's expiry.

Conclusion

A tacit renewal often happens unintentionally; frequently without the landlord and tenant even knowing that a tacit renewal has occurred. 

Tacit renewals are relatively easy to prevent provided that the landlord and tenant are pro-active in taking steps to demonstrate their intention not to tacitly renew the lease. Parties to leases should:

• keep weather eyes on the lease expiry date; 
• commence formal renewal negotiations well in advance of the expiry date (where the parties so wish); and
• take steps to preserve their position where the old lease has expired.

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

Surprisingly, the additional week's paid annual leave has not been the main concern for employers as the overwhelming majority of Jersey employers already provide their employees with entitlements in excess of this. The more problematic entitlement has been the 20-minute rest break and more relevantly, the lack of clarity over what that entitlement actually means.  So we have broken the entitlement down.

Did you know?

All Jersey employees are entitled to a 20 minute rest break for each continuous 6 hour period they work

• The break must be offered for each 6 hour period worked
• The 6 hour working period must be continuous.
• The entitlement is to be offered the rest break, it is not an obligation on the part of the employer to ensure that the employee actually takes the rest break.

The 20 minute rest break must be continuous

• The employee must be provided with a continuous 20 minute rest-break and not, for example, two 10 minute breaks.
• If a rest break is interrupted such that the employee does not take a continuous 20 minute rest break, then such break must be provided at a later time during the shift         

The rest break can be taken at any point during the 6 hour 'working period'

• The rest break can be taken at the beginning, in the middle or the end of any working period.
• There is no requirement that the employee must actually be on site for the break – i.e. it could be provided at the end of a 6 hour working period.
• This flexibility is a welcomed deviation from other jurisdictions which mandate rest periods.

An employee who works a 12 hour shift is entitled to a 40 minute rest break

• This can be a 40 minute continuous break in the middle of the shift (i.e. such that it attaches to the end of one shift and the beginning of the other) or two 20 minute breaks.

The 20 minute rest break can be paid or unpaid

• The employer must provide details of the treatment of the break in the terms and conditions of employment.
• Although the Employment Forum expressed the view that there is a general expectation that the break will be paid, an employer has the right to decide whether or not the break is paid.

Any lunch break can be off-set to satisfy the statutory 20 minute rest break

• For an employee who works a 10 hour shift, if an employer already offers an hour unpaid lunch break, they do not need to adjust their working practises or contractual entitlements.

What do employers need to do now?

Review your working practices, contracts, policies and procedures and identify those provisions that deal with annual leave, working hours and rest breaks. 

You may need to update handbooks, policies and procedures. If these documents are non-contractual, they can be updated and circulated to staff for their information.

You may need to change rostering arrangements or the way in which your staff are allocated breaks.

It may be necessary to amend contractual documentation. This can be done by way of letter to the affected employers seeking their consent to the changes necessary to accord with their improved statutory entitlements.

For further details, please get in touch with a member of the Bedell Cristin employment team.

Trustee (Amendment) Act, 2021

Changes include:

• Provisions enabling the Court to vary the terms of a trust if "…expedient in the circumstances then existing, whether or not the terms of the order may adversely affect any person or purpose".
• The introduction of statutory "Hastings Bass" rules to set aside flawed exercises of fiduciary powers.
• Refinements and expansions to the existing conflict of laws "firewall" provisions.
• Expanded reserved powers provisions.
• Obligations on BVI companies and foreign companies registered in BVI which act as trustees of trusts to maintain records and underlying documents.

Probates (Resealing) Act, 2021

Presently, it is only possible to reseal grant of probate in BVI issued by courts in any of Her Majesty's dominions. The principal change will be that this will be greatly extended to a list of sixty-seven jurisdictions, from Alberta to Zimbabwe.

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

A delegation from Guernsey Finance is hosting a virtual South African Funds roadshow on 24-25 March 2021. The roadshow kicks off with a webinar covering all elements of fund formation on Wednesday 24 March at 8am GMT and continues with meetings during Wednesday 24 and Thursday 25 March.

The roadshow will be led by Guernsey Finance, International Business Development Director, James Crawford, who will be joined by Dylan Latimer, Partner, Bedell Cristin and representatives from LTS Tax, Maitland Group and Midshore Consulting.

Click here to find out more and register for the South African Funds webinar.

The list is based on a selection process that evaluates industry knowledge, achievements, promotions and progress made in the past 12 months.

Nancy is a Partner in the Jersey International Private Client practice where she advises ultra-high net worth families, family office and intermediaries on all aspects of private client structuring. In addition to advising on all aspects of trusts, foundations and related corporate and commercial law issues she is the island's only private client lawyer with in-depth pensions and regulatory expertise which adds extra depth to the team's advice.

Her practice is truly international given her fluency in Mandarin which means she is widely known by the Chinese community in London as well as by advisors in Asia and her work in the UAE has brought Jersey’s expertise in private wealth to Middle Eastern clients and advisors.

Nancy commented:

'I am delighted to be named in the 2021 eprivateclient 50 Most Influential list and to be ranked alongside my peers who are professional advisers from UK and offshore private client world.'

Owen, an English and BVI qualified solicitor advocate, specialises in commercial and insolvency litigation and is already an experienced legal practitioner in the BVI.

A graduate of Oxford University, he was admitted as a solicitor in England and Wales in 2010 after training at Slaughter & May in London. He subsequently spent five years at an offshore law firm in the BVI as a key part of their commercial and insolvency litigation team. He has also worked as an investment manager at one of the UK’s largest litigation fund managers.

Lisa is a UK barrister with 20 years’ experience. She joined the firm as Counsel in July 2019 and was appointed Partner in October 2020.

A BVI qualified lawyer, Lisa has extensive experience in cases involving insolvency, joint ventures, commercial litigation, commercial and company law as well as asset tracing and fraud work. As a leading litigator in the BVI, Lisa has advised on many of the largest value commercial disputes, with a key focus on insolvency issues.

Tim Pearce, Global Managing Partner at Bedell Cristin, commented:

‘The high calibre of our recent appointments in the BVI is an excellent platform for further growth of our business in the region. Lisa has already begun to play an important role in helping to grow our international business from our BVI office and I was delighted to welcome her to the partnership and now with the recruitment of Owen, we have further strengthened our capabilities in commercial litigation to meet growing client demands.’

Lisa added: 'I’m delighted to welcome Owen and together we are looking forward to further building our business in the BVI, working closely with colleagues including many BVI qualified lawyers in our other offices within the Bedell Cristin global network.’

This conference, although well established in Jersey, is being held in Guernsey for the first time and is held in association with both The Jersey Pensions Association (JPA) and The Guernsey Association of Pension Providers (GAPP). 

The conference will have a variety of expert speakers from the UK and Channel Islands who are industry professionals, regulators, politicians and lawyers and will share their knowledge and expertise and will discuss relevant updates. 

Topics of discussion will include:

• A policymaker's perspective on pensions
• Looking ahead: Tax and Governance for International Pension and Savings Plans in the new era
• The future of retirement – looking ahead and planning with confidence
• Challenges for third country nationals in an increasingly jurisdictionally mobile environment
• Climate change for pensions professionals
• Panel Discussion:
  • Pension provision in the UAE
• Break Out Sessions:
  • Update on the DB transfer advice market
  • Data breaches for Directors – How to mitigate and respond
  • Active v passive investment management approaches

If you would like to attend this leading pensions conference, please purchase a ticket online by clicking here.

These short webinars form part of the 2021 MLRO Masterclass Series which discusses a range of topical areas such as:

• Busting AML myths
• Identifying PEPs; and
• When to submit a SAR.

David Cadin will be clarifying when it is appropriate to submit a SAR.  If you wish to join this webinar please click here to register:  To SAR or not to SAR? | BPP CI

The annual fees are relatively low and a successful applicant will pay US$1,500 per annum for their Certificate (a fee which includes one dependant), with fees of US$500 for each additional dependant.

In terms of ongoing requirements, a Global Citizen must:

• reside in property owned or rented in the Cayman Islands;
• be physically present in the Cayman Islands for a minimum of 90 days per annum;
• have adequate health insurance for themselves and any dependants; and
• not offer or provide any goods or services to any Cayman Islands entity or individual.

The Cayman Islands has certainly benefitted from attracting Global Citizens to our shores over the past year. The Global Citizen Concierge Program has proven to be reasonably popular so far, with the Department of Tourism confirming that, at the time of writing, over 219 families have been approved and close to 430 people (including dependants) are now residing in the Cayman Islands. In my view, one key attraction has been the 24-month stay which provides additional stability when compared to some of our neighbours' programmes which may only offer six months or less.

In response, our Government recently confirmed an extension to the Program such that interested applicants can apply at any time until November 2022.

What I have certainly noticed in my Residency Practice is the increasing number of clients that I am assisting with applications under the Global Citizen Concierge Program but whose ultimate intention is to apply for Extended or Permanent Residence. In my view, the Global Citizen Concierge Program offers such clients immediate and distinct advantages:

• Successful applicants can arrive in the Cayman Islands quickly, since approvals typically take two weeks;
• Having up to two years to get a feel for the Cayman Islands, the area in which they wish to reside, the type of property or properties that they wish to purchase for the purposes of their ultimate residency applications (noting that there are no limitations on their choices), all combine to provide a wonderful client experience where such important decisions can be made in a relaxed but reasoned manner;
• Significantly, should successful applicants eventually obtain Certificates of Permanent Residence during that two-year period and wish to progress to Cayman Islands and/or British Citizenship thereafter, any period of time spent under the Global Citizen Program would count towards such corresponding residence requirements for the purposes of those citizenship applications as if they had been residing on that Certificate of Permanent Residence ever since they first stepped foot in the Cayman Islands.

The Global Citizen Concierge Program offers qualified applicants an excellent opportunity to reside in the Cayman Islands, whilst affording them a reasonable amount of time to properly assimilate into the Cayman community and to make an informed decision about whether to acquire extended or permanent residency.

If you would like any further information, please get in touch with Daniel Altneu.

Guernsey is home to a specialist insurance sector, providing alternative risk transfer solutions to sophisticated clients such as corporations, investment managers and pension schemes. Held during the same week as Les Rendez-Vous de Septembre (10 - 14 September), this is an opportunity for Guernsey to position itself at the heart of the week-long congress and raise awareness of Guernsey’s financial services offering, particularly in relation to its insurance and reinsurance sectors. 

In the Cayman Islands, Jamie McGee is now Senior Associate in the Litigation team and Laverne Connor has been promoted to the role of Senior Banking Relationship Manager in the Property Finance team.

In the Financial Services Law (FSL) team in Jersey, Louise Hassell becomes Managing Associate and Natasha Bairstow steps up to the role of Senior Associate. In the International Private Client and Probate team in Jersey, Kirsten Brass has been promoted to Senior Associate. 

In the Jersey FSL team based in London, Nkechi Hokstad and Daniel McAviney have been appointed to Senior Associate and Moya Williams has been promoted to Associate. 

There have been a number of promotions in the Business Support Teams - Lucy Wright has been promoted to Senior Analyst in the Knowledge Management team and now recognised at Manager level are Chris Chambers (Finance) and Yolanda Velosa (Compliance), while Ebony Parker is appointed as Compliance Administrator. 

Congratulating them, Tim Pearce, Global Managing Partner, Bedell Cristin, commented: ‘I am delighted to announce a significant number of promotions across the firm in both the business lines and business support, recognising each individual's professional development as well as their important and increasing contributions towards the success of their teams and the firm. I'd like to congratulate and say well done to a strong team of home-grown talent achieving promotions.'

In its press release on 20 July 2022, Deputy Peter Roffey, President of the Committee for Employment and Social Security said "we thought it important to publish the draft Ordinance prior to formal submission to the States to give interested parties plenty of time to review it before the States considers the Ordinance". 

A copy of the draft Ordinance has been released and can be downloaded here. We will be reviewing that Ordinance carefully and preparing a high-level briefing detailing the headline terms, highlighting the aspects that our employer clients will need to be most mindful of and identifying the changes that may need to be made to existing contracts, policies, procedures and practices when the Ordinance comes into effect. 

There is still time, of course, for changes to be made to the Ordinance and the possibility that it may not be approved by the States at its next meeting, however we consider the likelihood of either of those outcomes being low. We recommend that all employers take note of the 1 October 2023 date and arrange a time in Q4 2022 to speak to a member of the Bedell Cristin employment team about their obligations in 2023.

Sara will be discussing 'Why SPACs continue to be the tool of choice in offshore centres'. 

If you would like to join the webinar and attend Sara's presentation, please register here:  SIFS

The borrower, Brighter Life Kenya 2 Ltd (BLK2), is a special purpose vehicle established to purchase receivables for solar home systems originated by d.light Limited in Kenya. BLK2 was set up by Solar Frontier Capital Limited, a wholly owned subsidiary of African Frontier Capital, and in consultation with d.light Design Inc., a leading provider of solar energy products. Financing under the debt facility will help provide d.light Limited with working capital to foster its sustainable growth and continuing impact on millions of lives by providing renewable lighting to people living off-grid in Kenya.

The group of senior lenders represented by Bedell Cristin and Hogan Lovells consists of:

• Norfund, a Norwegian state-owned company with limited liability;
• Oikocredit, Ecumenical Development Cooperative Society U.A., a cooperative society with excluded liability;
• Three vehicles managed by responsAbility Investments AG;
• United States International Development Finance Corporation (DFC), an agency of the United States of America.

The Bedell Cristin team was led by partner Alasdair Hunter who was supported by senior associate Malcolm Ellis and legal assistant Donna Watts.

The STEP LatAm Conference this year will be held on 14 and 15 October 2021 at the Riviera Maya in Mexico.   The event is bringing together renowned lawyers and banking, trust and accounting professionals related to the planning, structuring and management of wealth in Latin America.

Andrew Miller, Partner in the International Private Client team in the Cayman Islands, is pleased to be part of the very impressive line-up of twenty-four speakers. Andrew is really looking forward to attending, meeting up with old friends and making new contacts.

To find out more about the agenda, the speakers and to register for the event visit the STEP LatAm website.

With the aim to create a pipeline of talent for the future, the schemes enable students to learn from some of the best lawyers in the Channel Islands and provide an unforgettable experience.

Bursary scheme

The Bedell Cristin bursary scheme provides the opportunity, through a combination of financial assistance and work experience, to assist students in their progress towards successful legal careers in the Channel Islands. 

It is open to local candidates who wish to pursue a legal career in Guernsey or Jersey and are studying for a degree at University.

Recipients will receive an annual allowance which is paid in three instalments, and are offered up to eight weeks paid work experience during holiday periods. In addition all new bursary students receive a voucher towards study materials.

Bedell Cristin encourages the formation of close links and aims to build lasting relationships with bursary students including the provision of guidance and advice from our experienced teams as career choices are being made.

Find out more and apply here. Closing date is Monday 6 June 2022.

Trainee scheme

Our trainee scheme gives graduates the opportunity to learn from some of the best legal minds in the Channel Islands and become a UK qualified lawyer typically through the SQE route.

Candidates will rotate around our core legal departments as well as spending time with our support areas to get a full understanding of how we operate as a law firm. It's a paid two year programme with the opportunity to be considered for permanent opportunities at Bedell Cristin.

The Bedell Cristin trainee scheme is highly competitive so we look for students who are committed to a career in law and who possess drive and enthusiasm, initiative, academic ability and excellent communication skills. Candidates applying must be local possessing or on course for a 2:1 degree or better.

Find out more and apply here. Closing date is Monday 6 June 2022.

The Capacity Law came into force three years ago, radically altering the way in which the finances of vulnerable Jersey residents are dealt with. Vulnerable individuals are those who may not have capacity to make decisions for themselves by reason of an impairment of the functioning of the brain, for example, dementia, head injury or learning disabilities. The overall objective of the Capacity Law is to uphold the right of vulnerable islanders to self-determination by setting out a modern regime for decision making with them or on their behalf in their best interests. It was drawn up on similar terms in many respects to the Mental Capacity Act 2005 of England and Wales.

The Capacity Law introduced two new offices to support vulnerable Islanders:

Lasting Powers of Attorney

• For the first time, Jersey residents have been able to put in place Lasting Powers of Attorney ("LPAs") drawn up under Jersey Law. LPAs enable the donor to appoint attorneys to make decisions for them and act on their behalf. The advantage that LPAs have over ordinary powers of attorney is that they survive the supervening incapacity of the donor.
• Ordinary powers of attorney, commonly used by Jersey families to support elderly relatives with their finances, only remain valid whilst the donor continues to have capacity to understand and consent to the arrangement. If the donor later becomes mentally incapacitated, then the court must appoint a Delegate (formerly Curator – see further below) to manage that individual's finances. The Delegate is subject to court imposed restrictions and conditions and must report and account annually to the court for all dealings with the vulnerable individual's finances. Having an LPA in place avoids the cost and inconvenience of court proceedings and maintains the privacy of the donor.
  
  Delegates
• The customary office of Curator has been replaced by the Delegate. If an Islander becomes unable to manage their finances, and they have not put in place an LPA, the Court will appoint a Delegate to act on their behalf. The Delegate is a much more flexible arrangement than the rigid Curatorship regime as each Delegation can be tailored to the circumstances of the vulnerable individual. Under a Curatorship, the person was no longer permitted to participate in their own financial decisions whereas under the Capacity Law a Delegate has a positive duty to involve and support the person in their decision making where possible.

Notwithstanding that the Capacity Law has been in force for almost three years, concerns have been raised as to how banks have recognised these new Capacity Law offices. This resulted in a workshop arranged by the Judicial Greffe for the Jersey Bankers Association supported by the Law Society of Jersey for discussion as to how the banking industry can better serve the needs of vulnerable Islanders.

In the workshop, Toby Farlan, Capacity and Liberty Officer at the Government of Jersey, and Lisa Biddlecombe, the Assistant Registrar of the Probate and Protection Division of the Judicial Greffe, presented an overview of the Capacity Law and the scope of the authority of the two new Capacity Law offices. On behalf of the Law Society sub-committee for Capacity, Succession and Estate Planning, Bedell Cristin's Head of Wills and Probate Donna Withers was invited to attend the workshop and contribute to the learning and conversation. Having advised and acted as LPA attorneys and court appointees for many years, both in England under the Mental Capacity Act 2005 and in Jersey, Donna Withers emphasised what is needed from the banking relationship for vulnerable individuals and their representatives. At the heart of this is recognition that the relationship between the vulnerable individual and the attorney/delegate is that of principal and agent. The attorney/delegate stands in the shoes of the vulnerable individual with power to do anything necessary or expedient in their best interests which is not prohibited by the LPA instrument or Royal Court Delegation Order. Financial service providers may accept and recognise that power and are protected by the Capacity Law in so doing.

The introduction of the Capacity Law to Jersey was a significant step in protecting the rights of vulnerable islanders in accordance with modern standards. With islanders taking advantage of the new regime, it's now time for the finance industry to play its part in safeguarding vulnerable islanders' right to self-determination.

To find out more about

• LPAs – link to LPA Briefing https://www.bedellcristin.com/knowledge/briefings/jersey-lasting-powers-of-attorney/
• the Capacity Law – Briefing https://www.bedellcristin.com/media/2158/jersey-takes-a-step-closer-to-modern-mental-capacity-law.pdf

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

In Jersey, subject to the completion of two (2) continuous years of service with an employer, where an employee is dismissed as a result of their role having become redundant, they are entitled to a statutory redundancy payment equivalent to one week's pay for each completed year of service. This is an entitlement enshrined under the Employment (Jersey) Law 2003, as amended and is an obligation imposed on all employers to pay to their employees in the event of redundancy.

But the amount of "one week's pay" is subject to a cap.

With effect from Tuesday, 28 September 2021, Jersey's maximum statutory redundancy rate for a week's pay has increased from a cap of £780 to a cap of £820 per week. This cap is equal to the recently released mean average earnings of Jersey employees.

To qualify for a statutory redundancy payment, an employee must have completed a minimum of two years' continuous service with an employer. There is no upper limit on the number of years' service which qualify.

Minimum wage: increase due in January 2022

Separately, if approved by the States Assembly in October, Jersey's minimum wage will increase for those employees who are above school leaving age from £8.32 to £9.22 an hour with effect from 1 January 2022. The lodged proposal may be found here.

Whilst this seems like a significant jump (of around 10.8%), the proposed increase reflects both the reality that due to the recent Covid-19 pandemic there has not been an increase in the minimum wage since April 2020 and the desire on the part of the States Assembly to ensure that employees on the minimum wage reach receive 45% of mean average earnings.

Watch this space in October for a further update on the outcome of the next debate before the States Assembly.

If you would like any further information please get in touch with one of the contacts listed.

The Capacity (Bailiwick of Guernsey) Law, 2020 (The "Capacity Law") which has been in the pipeline for some time, will finally come into force in April this year if States members give it the final seal of approval in March.

The Capacity Law, which was approved by the States of Deliberation in April 2020, will introduce LPAs, which already exist in England and Wales and in Jersey, to allow a person (with capacity) (the "Grantor") to appoint an attorney (the "Attorney") to manage the Grantor's affairs should they no longer have mental capacity. When relevant time comes, the Attorney can take decisions relating to the Grantor's health and welfare, and/or property and financial matters. The Capacity Law has been influenced by the provisions of the English Mental Capacity Act of 2005. An LPA will only be valid if the Grantor is capable of understanding its nature and effect at the time the power is given. Currently, under an “ordinary” Power of Attorney, a Power of Attorney will cease to be in force once the person who has made the Power of Attorney loses his or her mental capacity. The introduction of LPAs will give islanders an effective solution to plan for their future in advance, as LPAs are very flexible. Please see our previous briefing 

Ordinance

In August 2021 the Committee for Health & Social Care announced plans for the implementation of the Capacity Law in several phases with emphasis being placed on the introduction of LPAs. Assuming the Capacity (Lasting Powers of Attorney) (Bailiwick of Guernsey) Ordinance, 2022 (the "Ordinance"), which sets out the process for the creation of LPAs, is passed on 30 March 2022, individuals will be able to make LPAs from 1 of April 2022. The Capacity Law envisages two kinds of LPAs: the first in respect of both ‘health and welfare’ matters and the second relating to 'property and financial affairs’. The Ordinance also sets out the proposed process of registration through Her Majesty’s Greffier, together with defining and describing the requirements in a number of key areas and the safeguards intended to protect the Grantors and their Attorneys in the Bailiwick context. It is intended that these procedures will be supported by a Code of Practice and relevant forms, the drafts of which are in the pipeline.

Implementation of an LPA

There is no need for an Advocate to prepare and register a LPA, but our team at Bedell Cristin is ready to guide our clients through the implementation process and address any questions which they may have.

The application form for registering LPAs will be available to be downloaded from the Royal Court website www.guernseyroyalcourt.gg, or available for collection from the Greffe. The completed forms would need to be taken to the Greffe for registration (by appointment only).  The Royal Court will charge a fee of £80 for the registration of a single LPA. For the registration of both a Health and Welfare and Property and Financial Affairs LPAs at the same time, the fee will be £100. We understand that further information will be added to the Royal Court website in the period between the States considering the Ordinance and the Ordinance coming into force. 

Bedell Cristin is proud to be Platinum sponsor of the 2021 seminar, which promises to be a fabulous event after its unfortunate cancellation in 2020 due to Covid-19.

Bedell Cristin's Litigation and Insolvency Partners from Guernsey and Jersey - Robert Christie, Alasdair Davidson, Edward Drummond and Robert Gardner - are attending the seminar and look forward to meeting friends and industry contacts.

For over 50 years, the skies of Guernsey have played host to some of Britain’s most historic and treasured military aircraft, including the iconic Red Arrows, one of the world’s premier acrobatic display teams.

As always the 2021 event relies almost entirely on private funding and, without sponsorship and support from individuals and corporates, the display cannot take place. Bedell Cristin has made a contribution toward this funding as part of firm's CSR programme, to enable islanders to continue to enjoy the annual iconic event.

The Guernsey Air Display plays a crucial role in:

• commemorating the lives and legacy of all those RAF aircrew who have served their country with honour and pride over the last 100+ years;
• celebrating the invaluable work that the RAF Association does for all former and current serving personnel who need support and assistance; and
• inspiring and entertaining islanders of all ages with a breathtaking display over St Peter Port harbour.

Read more about the Guernsey Air Display. 

Advancements and elevated excellence

This year's Legal 500 rankings brought excellent news for Bedell Cristin, demonstrating not only continued excellence across numerous practice areas but also significant growth, improvement, and well-deserved promotions within the firm.

This year, the Guernsey, Jersey, and London offices have collectively earned a total of 17 team rankings, with 6 of them achieving the prestigious Tier 1 status, the highest accolade bestowed by the directory. A total of 29 Bedell Cristin lawyers have been personally recognised in the rankings for their high-quality work.

The success in securing 6 top-tier rankings in the 2024 guide is a testament to the firm's outstanding capabilities across various practice areas, including dispute resolution, regulatory & white collar crime, commercial property, capital markets, private client, trusts & tax, and insurance.

Notably, the firm is excited to share the following highlights:

Notable highlights

• Special recognition goes to Tim Pearce (Global Managing Partner) who has been promoted to the prestigious Hall of Fame, an achievement that reflects his exceptional contributions to the firm and their clients.
• The Jersey Dispute Resolution and Regulatory & White-Collar Crime teams have both been promoted to Tier 1 status, with several team members maintaining strong personal rankings.
• Abigail Houghton (Associate), Louise Hassell (Managing Associate) and Nkechi Hokstad (Managing Associate) join the Legal 500 rankings as Rising Stars.
• Promotions in the rankings include John Scanlan (Partner) as a Next Generation Partner and Richard Le Liard (Partner) as a Leading Individual.
• The Employment and Private Client, Trusts and Tax teams in Guernsey have made their debut appearance in the rankings. Carly Parrott (Head of Employment) and Elena Gogh (Partner - Private Client, Trusts and Tax) also individually join the rankings this year as a Next Generation Partner and Rising Star respectively.
• All practice areas have either been promoted in the rankings or remained at the same level, unlike competitors in the offshore legal environment.

We have also received many outstanding quotes this year but a few that particularly stand out include:

• 'Bedell Cristin has been our firm’s first choice for private client and trust advice for more than 15 years. The fact that we have worked with them consistently for such a long period speaks volumes about the excellence of the service we receive from them.'
• 'The unique nature of Bedell Cristin is that it retains the personal touch while having the full substance and expertise of a major law firm of distinction.'
• 'They are pragmatic and easy to deal with and are extremely responsive and very practical. They are diligent, commercial and very user-friendly.'
• 'They are simply very good lawyers who are also extremely knowledgeable and do not get bogged down in minutiae.'
• 'They have excellent client handling skills and have the ability to manage complex real estate finance transactions with ease.’

All other categories have steadily remained unchanged and full details can be accessed here.

Tim Pearce, Global Managing Partner has said of the rankings, "I am immensely proud of the firm's and the many individual achievements in the 2024 Legal 500 rankings. Our continued dedication to excellence, nurturing talent, and our client-centric approach drives our success. We remain committed to providing top-tier, full service legal services across our practice areas and jurisdictions."

Thank you to our clients and contacts for providing feedback which is a direct testimonial of our hard work and dedication to the people we partner and work with. 

For further information including additional client testimonials and ranking data, please contact Stuart Winter at stuart.winter@bedellcrisitin.com.

How will the scheme work?

Under the 'First Step' scheme, the Government will provide a loan to eligible first-time buyers of between 10% and 40% of a property's purchase price to assist with the purchase of a home.

The balance of the property price can be funded by a mortgage of up to 55% and a deposit of 5% from the purchaser.

The Government will secure the loan by way of a second charge over the property and the purchaser can choose to repay the loan in increments or on the sale of the property in the future.

The scheme will be administered by Andium Homes.

Who is eligible for the scheme?

Any first-time buyer within the household income thresholds below can apply through the Assisted Purchase Pathway waiting list.

Applicable household income 

Which properties will be eligible under the scheme?

All open market properties will be eligible, except for new build properties. The Government aims to stimulate the local market and get housing chains moving again whereas new build developments do not form part of a chain.

How many purchasers could be supported by the scheme?

The Government has set aside £10m to fund the scheme, which should support up to 60 property purchases in its first year. If successful, the Government may choose to continue with the scheme in the future.

How do purchasers apply for the scheme?

Prospective purchasers should apply through the Andium Assisted Purchase Pathway. Further details will be made available in the coming months.

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

Dylan is a partner in the firm's Financial Services Law team in Guernsey specialising in structuring private equity and real estate funds. His extensive banking and finance (including real estate finance and aircraft finance) experience complements his funds practice.

Dylan was admitted as a solicitor in the Republic of Ireland in 2007 and as a solicitor in England and Wales in 2010. He has been practising in Guernsey since 2012. Dylan is an adjunct lecturer on the Guernsey Bar course. Before moving to Guernsey, Dylan specialised in corporate M&A work and investment funds. He also tutored on the Law Society of Ireland's Professional Practice course and was an editor of Butterworths Company Law in Europe. 

Rob Fullman, who joined the firm in 2022 and was Counsel in the Guernsey litigation team, has become a Partner.

Rob has more than 20 years’ experience practising law in Guernsey, both general and commercial litigation. He is a specialist in debt recovery work and has extensive experience in judgment enforcements. He qualified as a solicitor in 1996 and was admitted as an Advocate in Guernsey in 2002.

Tendai Gakanje has also been promoted in the Guernsey office to Senior Associate in the Financial Services Law team. She joined Bedell Cristin in 2020 having previously worked as a lawyer in Zimbabwe where she qualified as a solicitor. Tendai has a wide range of experience dealing with insurance and reinsurance matters, corporate and commercial matters and specialises in mergers and acquisitions, corporate finance transactions and corporate advisory work and cross border transactions.

There were also a number of promotions in the Jersey office. Adam Currie, who has been Acting Chief Operations Officer, and Phil Le Brun, the acting Head of ICT, have both been made permanent in their roles. In addition, Aleks Pal has been promoted to Finance Administrator in the Finance team.

Congratulating all on their promotions, Tim Pearce, Global Managing Partner, Bedell Cristin, commented:

‘These appointments are a testament to the significant contribution that each individual has made to the firm. I would like to express my thanks to them all for their commitment and achievements and I wish them every success as they continue to progress their careers with us.’

The Legal 500 APAC guide provides unbiased commentary and insight into the legal marketplace of 25 Asia Pacific jurisdictions. Rankings reflect the results of analysis of law firm submissions and interviews undertaken by their team of experienced researchers.

The firm has been ranked in Tier Two and Singapore based Partners, Joanne Verbiesen and Kristian Wilson have been listed as ‘leading individuals’, while Philip Kendall, an Associate in the Jersey office, has been included in the ‘rising star’ category.

Kristian, who is BVI qualified, was described as a ‘trusted advisor…….commercial in approach and available when additional advice or information is needed even at short notice,’ while the team was highlighted as having ‘deep knowledge and expertise in BVI, Cayman and Jersey law in particular in the law of trusts.’

Clients in the rankings described Joanne, who is a BVI and Cayman qualified lawyer, as ‘quickly identifying and solving cross border issues'

The team provided ‘a thorough and comprehensive knowledge and consistently added value in terms of advice…able to cover various aspects of BVI law including deal/M&A related as well as governance, structuring and joint ventures.’

Specialising in the provision of BVI, Cayman Islands, Guernsey and Jersey law, Bedell Cristin first established an office in Singapore in 2012. It strengthened its presence with further hires and a move to new offices in 2021. Locally, the firm supports the Singapore legal industry with offshore legal advice that spans a wide range of banking, corporate finance, dispute resolution, funds, insolvency, private client, regulatory, and restructuring work in the Asian region

Daniel Altneu, who joined the firm in 2013, has been promoted to Partner in the International Private Client Team in the Cayman Islands.  Daniel offers a full private client service covering every aspect of immigration, residency, trusts and wealth structuring, estate planning, probate and family law. He advises high-net-worth individuals and companies on a variety of immigration issues and has extensive experience of assisting persons of independent means, families and businesses with relocation to the Cayman Islands.

Sonia Shah becomes Managing Associate in the Litigation team in Jersey.  Sonia joined the firm in March 2016 having qualified with Gordon Dadds LLP in London. Her practice involves advising leading onshore law firms, fiduciaries and high net worth individuals in relation to trust, commercial, insolvency and regulatory matters.

In the Jersey Financial Services Law team based in London, Nkechi Hokstad has been promoted to Managing Associate.  Nkechi joined the firm in January having qualified with Clifford Chance LLP in London. Nkechi has a wide range of experience dealing with banking and finance and corporate and commercial matters, particularly in relation to acquisition finance, corporate advisory work and private funds.

There have also been promotions in the business support teams with Sarah Ferguson promoted to Deputy Head of ICT and Ebony Parker promoted to Senior Compliance Administrator. 

Congratulating them, Tim Pearce, Global Managing Partner, Bedell Cristin, commented: "I am delighted to announce these promotions across the firm in both the business lines and business support, recognising everyone's professional development as well as their important and increasing contributions towards the success of their teams and the firm. I would like to express my thanks to them all for their commitment and achievements and I wish them every success as they continue to progress their careers with us."